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SEE YOU IN COURT! - March 2013

CABE Journal

March 2013

After her granddaughter Vivian was born, Penny Pincher decided to resign her position as a member of the Nutmeg Board of Education. Soon after Penny’s resignation became public, Mayor Megillah was on the telephone with each of the remaining members of the Board, lobbying for his nephew Wiley Waze, who had just recently moved to back Nutmeg after a mysterious absence that may have included time in prison. The Board members didn’t want to antagonize the Mayor, but they did want to make it look good, so after convening into executive session, the Board interviewed Wiley, the PTO President and a member of the Youth Athletic League. The Board members then discussed the candidates and quickly decided on Wiley. After all, Board member Bob Bombast noted, how much trouble can one Board member cause?

The Board soon found out. Wiley was quite the operator, and the Board members learned that every time that Wiley raised an issue, there would be some angle of self-advantage. At a Board meeting shortly after he was appointed, he announced that he would be putting in not only for reimbursement for his expenses, but also for a modest hourly rate to compensate him for his “research” on various issues coming before the Board. “Nothing extravagant, of course,” he assured the Board members, “but more than the minimum wage to compensate me for my public service.”

At the Board meeting last evening, Wiley made another move under New Business. “With our tight budget, we need to squeeze every nickel,” Wiley proclaimed. “Some classrooms are too hot, and some classrooms are too cold. We need expert help to keep our temperatures just right.” With that, he passed out to the other Board members and Mr. Superintendent a brochure that advertised “Energy Matters,” a newly-formed consulting firm right in town. After a lengthy introduction, Wiley proposed that the Board hire Energy Matters for such consulting services, explaining that he had arranged a special public sector discount with the owner. Dramatically, he ended his presentation by exhorting his fellow Board members to take advantage of this very special offer.

“Wait a minute,” interrupted Bob Bombast as he perused the brochure. “Isn’t the owner your girlfriend?”

Wiley smiled and quickly acknowledged that such is the case. “I can assure you that my fondness for the owner has nothing to do with my position here. This is the best deal the Board could ever find. However, to avoid the appearance of conflict of interest, I will not be voting on this matter,” Wiley said grandly.

With little discussion, the other Board members voted to reject the proposed contract from the consulting firm. But that was not the end of it. Bob Bombast was incensed by what he considered to be deceptive tactics by Wiley, and he made a motion that Wiley be censured and given a final warning that he would be removed from the Board if he ever again pulls a stunt like that. Wiley’s protestations were in vain, and the other quickly passed Bob’s motion without discussion.

Does Wiley have any recourse?

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Robert’s Rules of Order includes disciplinary procedures that can be followed when board of education members act inappropriately. However, Robert’s Rules address two different situations – those involving an offense during a meeting and those involving an offense that occurs away from the meeting. Here, it was appropriate for the Board to act without further ado; there was no need for additional fact-finding because Wiley’s misconduct occurred in front of everyone. By contrast, if a board is considering censure of a member for action taken away from the meeting (as for example if and when a board member is accused of disclosing executive session discussion), Robert’s Rules contemplates more of a trial, in which the facts are established and in which the accused has an opportunity to respond. Such procedures are used sparingly, of course. In any event, boards of education do not have the authority to exercise the ultimate sanction of removal from office.

The misconduct, of course, was Wiley’s promoting his girlfriend’s company without disclosing the connection. Significantly, his saying he wouldn’t vote on the contract remedied nothing. When there is a conflict of interest, a board member should also not participate in any of the related discussion. Boards of education make their decisions through deliberations in which board member discussion may and should affect how people vote, and the discussion is part of the decision-making process.

This situation involves a number of other issues as well. Conn. Gen. Stat. § 10-219 provides that, unless otherwise provided by charter or special act, vacancies on the board of education shall be filled by the remaining members of the board until the next regular town election, when a successor will be elected for the unexpired portion of the term. In filling such vacancies, boards of education have the right to interview and to discuss candidates in executive session. However, the Board here appears to have overlooked a requirement. As with personnel, such executive session discussion is permitted as long as the person being discussed does not require that the discussion as to him or her be held in open session. The Board should have notified the candidates of their right to require that the discussion as to them take place in open session.

Also, discussion of the proposed contract under “New Business” violated the FOIA. The agenda for meetings of public agencies must fairly apprise the public of the business to be conducted, and business includes discussion, not just action items. Under “New Business,” it is appropriate to identify topics for future agendas. However, a substantive discussion of any such topic should not occur at that time.

Finally, if Wiley accepted payment from the Board on his bill for “research,” he is no longer on the Board at all. Conn. Gen. Stat. § 10-232 prohibits employment by a board of education of its members, and it goes on to provide: “If any member of such board is employed contrary to the provisions of this section, the office to which he or she was elected or appointed shall become vacant.” Recently, a former board member in Plainfield learned that employment can involve receipt of any compensation. There, the board member requested and was paid $15 per hour for serving as staff in going on a field trip that included her son. When the board member accepted payment, board counsel opined that her board office became vacant by operation of Section 10-232, and the board of education filled her position. She challenged that determination in court, and last month the superior court ruled denied her request for an injunction to reinstate her to her former position.

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