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SEE YOU IN COURT! - December 2015

CABE Journal

December 2015

Authors: Thomas B. Mooney

With the holiday season in full swing, the Nutmeg Board of Education has been having difficulty getting a quorum to attend its meetings.  The meeting last week was delayed by forty-five minutes as the Board members present waited for a fifth member to straggle in to create a quorum.  Tonight, four members of the Board, including Ms. Chairperson, were again waiting.  And waiting.

The meeting was scheduled to begin at 7:00 p.m., but at 7:25 p.m. four members of the Board were still waiting and wondering if they would ever be able to start the Board meeting.  Finally, Board member Mal Content decided that he had waited long enough.  “Ms. Chairperson,” he began, “it appears that our thoughtless colleagues will not honor us with their appearance this evening.  I say let’s get started.  As long as we don’t take any action, we should be fine.”

Board member Penny Pincher’s eyes lit up.  “I agree with Mal!” she responded.  “Since we have given up our evening, we should have the meeting no matter what.”

Ms. Chairperson reflected on her own frustration with the Board members who couldn’t be bothered to attend meetings, and she quickly came to a decision.  “OK, then,” she announced.  “I hereby call the meeting of the Nutmeg Board of Education to order.  The first order of business is the Pledge of Allegiance.”  With that, the Board members present said the Pledge to start the meeting.  Then, Ms. Chairperson announced that, given the need for a vote, the Board would skip Approval of the Minutes, and proceed directly to Comments from Citizens.  “Does anyone want to say anything?” asked Ms. Chairperson.

“I was planning to talk,” came a voice from the audience.  It was Ken Tankerous, a regular speaker who never has anything nice about to say about anyone or anything.  “But I don’t think that this is kosher.  I have a right to speak to the Nutmeg Board of Education, not a rag-tag group who can’t even assemble a quorum.”

“Watch your mouth, Ken,” responded Ms. Chairperson.  “If and when we get a quorum, we are not going to repeat everything.  This is your chance for public comment.  Take it or leave it.”

“Then I will leave it,” Ken shot back.  “You will be hearing from my lawyer.” 

“Suit yourself,” said Ms. Chairperson.  “In fact, I don’t think that you should be permitted to talk at any future meetings because you are a real whiner.  Tell that to your big shot lawyer.”  With that, Ms. Chairperson called upon Ms. Superintendent to give her report, which was lengthy as usual.

One-half hour later, just as Ms. Superintendent was winding up her extensive report, veteran Board member Bob Bombast showed up to create the quorum.  “Sorry I am late, but the sales right now are amazing.  I hope I didn’t miss anything . . . .”

“No problem, Bob.  We just finished up Comments from Citizens and the Superintendent’s report.  We will now move into the business portion of the meeting.”  Board went on with its meeting, now with a quorum.  Did the actions by the Board members present before a quorum was established violate anyone’s legal rights?  

*        *        *

Surprisingly, not yet.  To be sure, there was no “meeting” of the Board of Education before the quorum was assembled, and Ms. Chairperson’s purporting to start the meeting without a quorum was ineffective.  If the Board’s bylaws prescribe an order of business for its meetings, Ms. Chairperson violated those bylaws by not starting over when the quorum was created.  However, actions inconsistent with the Board’s bylaws raise issues of parliamentary procedure, not of legal rights.

The issues here chiefly relate to the provisions of the Freedom of Information Act.  First, until a quorum is convened, the Nutmeg Board of Education is not conducting a meeting under the FOIA.  Given that the gathering is not a meeting until a quorum assembles, the members of the Board who were present were free to discuss Board business among themselves, and those discussions did not violate the FOIA.

The real question here is what the Board members present should have done while waiting for a fifth Board member to show up.  Waiting is the default option, of course, but that gets old, as it did in Nutmeg.  Another option would have been to connect with one or more Board members by telephone to create the quorum.  The FOIC specifically contemplates that possibility: the definition of “meeting” under the FOIC includes “any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”  If one of the absent Board members had participated by telephone, the Board would have established a quorum, and it could have proceeded (more or less) normally with its meeting. 

In this regard, please note that permitting board members to participate in meetings remotely raises some policy and procedural issues for consideration (e.g., how to handle executive session and/or must a Board member attending “electronically” participate for the entire meeting?). Before permitting such remote participation on a regular basis, boards of education may wish to discuss and address such issues to establish clear expectations for “attending” meetings electronically.

Sometimes, it is simply not possible to obtain a quorum, even by electronic means.  The FOIA addresses that situation specifically.  Conn. Gen. Stat. Section 1-228 provides that a “public agency may adjourn any regular or special meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time.  . . .  A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular or special meeting was held, within twenty-four hours after the time of the adjournment.”  Interestingly, this provision does not appear to require that the adjourned meeting be posted, though of course such posting may be helpful notification to the public.

Finally, we noted at the outset that the Board has not violated anyone’s legal rights – yet.  However, Ms. Chairperson told Ken Tankerous that she didn’t think he should be permitted to speak at future meetings because he is a real whiner.  When the Board establishes an opportunity for the public to speak, however, it creates a forum for speech that is protected by the First Amendment.  If Ken makes personal attacks, yells or swears, Ms. Chairperson can rule him out of order and, if he persists, cut him off.  However, simply whining about educational issues is protected speech.

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