skip to main content

Publications

SEE YOU IN COURT! - February 2013

CABE Journal

February 2013

Penny Pincher had served on the Nutmeg Board of Education for five years, and regular attendance at Board meetings had always been important to her. But as happens, things changed for Penny when Penny’s daughter gave birth to Vivian, Penny’s first granddaughter. Suddenly, the Board of Education and all its intrigue were unimportant to Penny, as she spent all of her free time visiting her daughter and her new granddaughter “Vivi.” For over a month now, Penny had not attended a single Board meeting.

Penny’s dereliction did not escape the notice of veteran Board member Bob Bombast. At the beginning of the first meeting this month, Bob pointed to Penny’s empty chair and insisted that the Board had to do something about Penny. Just as Bob was working himself into a lather, Mr. Superintendent’s cell phone rang. “It’s Penny,” he announced. “She is watching on cable, and she wants me to put this on speaker so that she can participate in the Board meeting tonight without leaving Vivi.”

“No way!” responded Bob. “We dragged ourselves through the snow and cold to get here, and we can’t let Penny or others start ‘phoning it in.’ The Board has important business to conduct, and we shouldn’t be doing it over the telephone.”

“Sorry, Penny,” Mr. Superintendent conveyed the message to Penny. “Maybe you can tear yourself away from Vivi for the next meeting...” With that, Mr. Superintendent signed off, and the Board went about its business. But Bob did not get over his indignation, and at the end of the meeting, he insisted on adding an executive session item, “Discussion concerning removal of a Board member.” Mr. Chairperson acquiesced, and at the end of the meeting, he, Bob and the other Board members chatted confidentially about Penny’s fixation on her granddaughter and what they could do. Bob suggested some sort of psychiatric evaluation to determine fitness for Board service, but the other members demurred. They agreed that Board member Mal Content, Penny’s closest friend on the Board, would meet with her and try to convince her to come to the next meeting.

Penny was again absent at the meeting last night. Bob noticed right away, and under Communications, he asked Mal for a report on Penny’s whereabouts.

“It didn’t go so well,” Mal began. “Penny has no interest in leaving Vivi at night. But she told me she remains committed to fulfilling her responsibilities as a Board member. So she gave me this notarized proxy. She has authorized me to vote on her behalf on all matters. So I will.”

“Wait a minute,” Bob thundered. “I know our Bylaws, and proxy voting is not permitted. I move that Penny be removed as a Board member. Now!”

“I am sorry, Bob,” responded Mr. Chairperson. “Your motion is out of order, but I can put it on a future agenda. However, until then I will allow proxy voting by Mal on Penny’s behalf. I know the Bylaws too, and they are silent on this point.”

Bob began to raise a point of order, but Mr. Chairman quieted Bob with a peremptory Shusssh! Uncharacteristically, Bob was silent. But his mind was working overtime. He would not give up that easily. Should Bob prevail here? 


                                                           *             *             *

Removing Penny from office is not possible, but Bob made some good points.

We should start the discussion by reviewing how boards of education do their business. Boards of education are deliberative bodies. They make their decisions by discussion, reflection and vote of their members. That is why, when a board member has a conflict of interest, he or she may not participate in the discussion – the discussion is an integral part of the decision-making process.

Given that fact, it would never be appropriate for a board of education to permit proxy voting. Board members should base their decisions on all the information they receive about issues before the board, especially the discussion at the board table. A proxy vote would be cast before the discussion even occurs, and the board member would not have the benefit of hearing from other board members before making a decision. If that were appropriate procedure, boards of education would not even have to meet, and all the board members could read the packet and phone in their decisions.

Participation in board meetings by electronic means stands on a different footing. The key word, however, is “participation.” Under the Freedom of Information Act, members of public agencies are permitted to hold meetings “by electronic means or otherwise,” and some boards have permitted their members to participate in their meetings remotely. However, there are practical problems to consider in permitting such remote participation. What should the board do if the remote connection cannot be achieved or is lost? Should board time be spent trying to reconnect? How do we know that the board member is paying attention? How do we assure that the board member participating remotely preserves confidentiality of executive session discussion? Some of these issues involve trust, but these concerns should be considered and addressed in policy before allowing electronic participation.

The Board here erred in convening an executive session to discuss removal of Penny. As a threshold matter, there is no mechanism under state law for the removal of a board of education member. In an extreme case, a board could ask a court to exercise its equitable powers to issue appropriate orders to avoid disruption of board business by a rogue board member. But mere absenteeism is a problem in which moral suasion, not judicial intervention, would more likely be successful.

There was also a problem with the Board’s executive session discussion of Penny. The Board may discuss the “appointment, employment, performance, evaluation, health or dismissal” of a Board member in the same way it may discuss an employee, but Board members who are discussed have the same right as employees to receive prior notice and require, if they wish, that discussion as to them occur in open session. At a regular meeting, the Board could have added the item to the agenda by a two-thirds vote, but advance notification to Penny would still be required.

Finally, Bob could have challenged the procedural ruling by Mr. Chairperson to permit Penny to vote by proxy. He should have raised a point of order, articulating his concern. If Mr. Chairperson maintained his position, Bob could have appealed, and if another Board member seconded his appeal, the decision would have been taken from Chairperson and given to the Board as a whole. However, by succumbing to Mr. Chairperson’s shushing him, Bob waived further objection, at least for that meeting.

Attorneys

Practice Areas

Industries & Featured Services

© Shipman & Goodwin LLP, 2017. All Rights Reserved.