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SEE YOU IN COURT! - December 2014

CABE Journal

December 2014

The meetings of the Nutmeg Board of Education have been way too long.  They always get off to a slow start because typically the first hour or more is devoted to Public Comment, which in reality is more like Target Practice, as resident after resident stands up and takes shots at the Board.  One resident even pools minutes from others so that he can excoriate the Board for a full fifteen minutes each meeting.  By the time the Board gets to its agenda, feelings are hurt and nerves are frayed.  Often it is after midnight before the meeting concludes.

At the urging of veteran Board member Bob Bombast, Ms. Board Chairperson put “Board Operation” on the agenda for the meeting yesterday.  At the beginning of meeting, Bob then moved to amend the agenda to make “Board Operation” the first agenda item.  The Board promptly agreed, and then Bob moved that the Board convene into executive session to discuss “Board evaluation” under the “Board Operation” agenda item.  There was an indignant murmur from those who had come to the meeting to criticize the Board during Public Comment, but the Board was undeterred.

Once the Board was in executive session, Bob unveiled his plan for more efficient Board operation.  “First,” Bob urged, “we must stop letting the public kick us around.  We start our meetings in such a negative way!”

Board member Mal Content reluctantly disagreed.  “I wish we could shut them up, but don’t we have to give the public a chance to speak?  This is America...”

Ms. Chairperson concurred.  “We can’t just cut them out.  But we can further limit their time to, say, two minutes.  That would help.”

“What else would help,” interjected Penny Pincher, “is if we all kept our mouths shut and didn’t try to respond.  Bob, you drive me crazy when you do that.”

“Why don’t you mind your knitting, Penny?” Bob responded.  “Sometimes we need to set the record straight.  And come on, Board members, we have to think creatively here.  What else can we do to streamline our meetings?”

Mr. Superintendent offered a suggestion.  “You guys are always getting into the weeds.  Why don’t we put most action items on a consent agenda that we can just pass at the beginning of the meeting?  We can save our energy for new significant items.”

Penny and Mal immediately agreed, but Bob was wary.  “The devil is in the details, Mr. Superintendent,” Bob responded.  “We Board members have an important oversight role that extends to almost everything.”

“Well, if you don’t trust me...” a miffed Mr. Superintendent began to say.

“Let’s not go there,” interrupted Ms. Chairperson.  “Let’s limit Public Comment to positive comments and shorten the speaker’s time to two minutes.  We can deal with the idea of a consent agenda later.  Are we all set for now?”

Without dissent, Ms. Chairperson terminated the executive session discussion and reconvened the Board meeting in public session.  When Ms. Chairperson announced these changes, however, the Board’s most vocal critics vowed a challenge.

Will the Board be able to make these changes and operate more efficiently?

*              *             *

As with so many legal issues, the answers here are yes and no.

First, the Board can do much of what it discussed.  Boards of education have no legal obligation to provide opportunity for public comment.  Board of education meeting are meetings in public, not public meetings.

When a board of education decides to offer the public an opportunity for comment, it is free to decide when it will offer such opportunity.  The board can also limit the overall time it will spend on hearing from the public.  For example, it would be fine to devote thirty minutes to public comment at the beginning of the meeting and move further public comment to the end of the meeting or even to the next meeting.

The board may also limit the time that people can speak (and no one has a right to “pool” minutes of others).  The key is that such time restrictions must be imposed even-handedly.  When a board of education opens a forum for the public to speak, it may not discriminate against speakers on the content of their speech.  Time limitations are fine as long as they are applied in the same manner to all speakers, those with popular speech (e.g., speech praising the board) as well as those with critical speech.

That said, in taking these actions the Board overstepped in various ways.  First, boards of education cannot prohibit members of the public from making comments critical of the board or of district employees.  Given that public comment is a forum protected by the First Amendment, boards of education cannot pick and choose what speech to allow.  If members of the public can say nice things, they can say not-so-nice things.  Of course, the board may enforce prohibitions against ad hominum attacks, screaming, yelling and other inappropriate behavior.  But boards cannot limit the public to “happy talk.”

Board members are also well-advised to refrain from engaging in a discussion with members of the public over their comments.  A brief correction or redirection is not a problem.  However, public comment is a time for the public to speak, not a time for the board to conduct substantive discussions.  In an extreme case, such discussion could even be a violation of the FOIA, because board members would be discussing a topic during public comment that was not on the board’s agenda for the evening.

The Board also erred in discussing most of these issues in executive session.  To be sure, the provision in the FOIA permitting executive session discussion of the “appointment, employment, performance, evaluation, health or dismissal of a public officer or employee” applies to board members.  Accordingly, board members can discuss the performance of individual board members in executive session (subject to the right of any member to require open session discussion as to him or her).  Penny’s comments about Bob, for example, were appropriate to executive session.  More general discussion of board operation, however, should be held in open session.

Finally, there are ways to streamline operation, whether or not a board changes its approach to public comment.  Many board actions are technical in nature, with no need for discussion.  Such items can include approval of the minutes of the previous meeting, approval of appointments, acceptance of resignations, and the like.  Some boards place such items on a consent agenda, on which the board takes action early in the meeting.  When a consent agenda is used, board members can request that the item be removed from the consent agenda so that it can be separately discussed.  However, many items can be addressed through the consent agenda without debate or discussion.

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