skip to main content

Publications

SEE YOU IN COURT! - January 2015

CABE Journal

January 2015

Mayor Megillah, long-serving Mayor of Nutmeg, is in a perpetual reelection campaign, and his latest gambit to pander to special interests involves a proposal to install lights at the football field at Nutmeg Memorial High School.  Last week, he sent an email to the Board of Education, informing it that installation of lights at the High School would commence in February.  Mr. Chairperson immediately called Mayor Megillah to explain that the Board of Education had not even discussed the matter.

“No problem,” responded the Mayor breezily.  “Just tell them that the Town owns all school property, including the football field at the High School, and that we have decided to install lights.”  Mr. Chairperson tried to explain to the Mayor that the decision is up to the Board of Education, but the Mayor wouldn’t hear of it.  Incensed, Mr. Chairperson called an emergency meeting for that night.

Seven of the nine Board members were able to attend, and veteran Board member Bob Bombast asked Mr. Chairperson what great emergency called them out on a cold night.  Mr. Chairperson then related his conversation with the Mayor, and he asked the Board members to join him in a vote to declare that that the football field will be a “lights-free zone.”

Bob Bombast looked stricken as he listened to Mr. Chairperson describe the conflict between the Board of Education and the Mayor.  “Well,” he began, “Let’s not rush into things.  I think that lights at the football field might be a good idea.”

Board member Mal Content erupted with indignation.  “Bob,” he said testily, “you can’t vote here.  Indeed you shouldn’t even be speaking.  We are well aware of the fact that you ran the Mayor’s reelection campaign last year.  You clearly have a conflict of interest here.  So just shut up!”

Penny Pincher chimed in.  “Bob, we all know that you carry the Mayor’s water.  You are a shameless political animal.  I move that Bob be recused from voting here.”

The other Board members murmured assent, and Mr. Chairperson ruled.  “Bob, the Board has spoken.  Your conflict of interest in this matter is apparent, and you will not be permitted to vote on this matter, understood?”

“No, I don’t understand!” Bob responded heatedly.  “I was elected to serve on the Board, and you have no right to disenfranchise me.”

“Wow,” responded Mr. Chairperson.  “That is a five-dollar word.  But no matter, that is my ruling.”

“I appeal,” Bob responded.  However, the other Board members sat mute, and Mr. Chairman quickly moved on.

“Can I have a motion to inform the Mayor that we will not be installing lights on the football field?” asked Mr. Chairperson.  Penny Pincher so moved, seconded by Mal Content.  The Board members then voted, six in favor, with Bob voting against.  However, Mr. Chairperson then instructed the Board secretary to record the vote as six in favor with Bob abstaining from the vote per the ruling of the Chair.

Did Mr. Chairperson rule correctly here?

*               *              *

In a word, no.  This situation raises a number of legal issues, but first and foremost, Mr. Chairperson had no right to rule that Bob cannot vote on the motion.

When dealing with conflicts of interest, we must keep some basic principles in mind.  First, when a vote by a public official affects his family income, the public official has a conflict of interest.  While not directly applicable, the State Ethics Code provides that there is a conflict of interest “if [a public official] has reason to believe or expect that he, his spouse, a dependent child, or a business with which he is associated will derive a direct monetary gain or suffer a direct monetary loss, as the case may be, by reason of his official activity.”  Conn. Gen. Stat. § 1-85.  A vote that would affect family income in this way would subject the board member to an ethics claim.

Most conflict issues, of course, do not involve such a clear conflict.  Board members have a basic responsibility to vote objectively with the public interest in mind, without letting their personal interests affect the vote.  Board members must ask the question – can I vote on this matter impartially based on the information before me without regard to prior connections or relationships?

Significantly, that decision is left to the individual board member.  Here, in ruling that Bob could not vote because of his apparent loyalty to the Mayor, Mr. Chairperson overstepped for two reasons.  First and foremost, it was not his call to make.  The public elects board members, and they have the right and responsibility to participate in board meetings, including votes.  The board, acting through the chairperson or as a whole, cannot take away a board member’s right to vote.

Second, here Bob had no conflict of interest.  Board members come to their responsibilities with various experiences and allegiances, and their loyalties and interests do not disqualify them from voting.  Board members may, of course, decide not to vote on matters because they conclude that friendship, antipathy or other factors make it impossible to discharge their public responsibilities objectively.  But those decisions are left for the board member to make for him- or herself.

Finally, if a board member has a conflict, they may not even speak to the issue.  Boards of education are deliberative bodies, and that discussion preceding a vote is part of the decision-making process that the person with a conflict would affect.

This situation raises a host of other legal issues.  Clearly, the Mayor overstepped in purporting to assert control over property dedicated to use for school purposes.  The Nutmeg Board of Education has jurisdiction and control over such property, and only if the Board so votes will lights be installed at the high school.

Also, Mr. Chairman violated the Freedom of Information Act in two respects.  While he was understandably riled up by the Mayor’s presumption, the circumstances were not an “emergency,” given the plan to install lights in February.  The FOIC will sustain a claim of emergency (and the concomitant failure to post a meeting at least twenty-four hours in advance) only under truly exigent circumstances, which was not the case here.  In addition, Mr. Chairperson violated the FOIA in claiming on the basis of discussion that “the Board had spoken.”  Under the FOIA, public agencies must act through recorded votes, and consensus action is not permitted.

Finally, the Board members engaged here in bad behavior.  Rude comments (“shut up!) or ad hominum attacks (“shameless political animal”) are simply not permitted, and Mr. Chairperson should have ruled such comments out of order.  Under Robert’s Rules, civilized debate is expected, and such personal attacks are a violation of parliamentary procedure.

Attorneys

Practice Areas

Industries & Featured Services

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