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SEE YOU IN COURT! - November 2014

CABE Journal

November 2014

The other members of the Nutmeg Board of Education were surprised when Ernie Entrepreneur was elected to serve as its newest member.  Though respected in Nutmeg, Ernie was notoriously overextended with his business commitments, and the other Board members wondered how Ernie would manage to attend Board meetings.

It didn’t take long to find out.  At the first Board meeting after the election, Ernie pulled out his phone to check his calendar against the Board calendar, and he announced grandly that he had some big deals brewing and that he would be out of town for four of the next six meetings.

“That’s too bad,” veteran Board member Bob Bombast commented snarkily.  “We sure are going to miss you.”

“Actually, I will be attending the meetings by Skype,” Ernie responded.  “No matter what important business takes me out of town, I will fulfill my obligations to the voters of Nutmeg.”

“Is that legal?” Board member Mal Content asked.  “I thought we actually had to come to these meetings, tiresome though they may be.  What gives?”

“Of course!” said Ernie.  “I will be Skyping in for each meeting.”  The other Board members didn’t want to pick a fight, and they simply nodded in silent acquiescence.  They were, however, curious how Ernie’s Skyping would work.

They found out at the next meeting.  Mr. Chairperson was ready to call the meeting to order, and all the Board members were present...except for Ernie.  A laptop was placed in front of the Board table, eye level for the other Board members, with a big blank screen.  Ring Ring.  The IT technician promptly placed a call to Ernie as the other Board members waited impatiently.  Ring Ring.  No answer.

“Well?” Bob Bombast asked impatiently.  Are we going to wait forever?”

“Obviously we have some technical difficulties,” responded Mr. Chairperson.  “Let’s just chill out here and give Ernie another few minutes.”

Ring Ring.  “Hello?” everyone heard as Ernie’s smiling face appeared on the screen.  “What did I miss?” asked Ernie, his hair apparently wet from the shower.

Mr. Chairperson called the meeting to order, and things went smoothly, more or less.  Twice the Board lost the Skype connection with Ernie, but the technician was able to restore the connection promptly each time.  Ernie even participated in the discussions and started to cast a vote...

“Point of order,” interjected Bob Bombast. “Ernie can attend the meeting in the same way as the folks at home can watch us on cable, but he can’t vote, can he?”   Mr. Chairperson quickly waved Bob off.  “Unless you can cite some law, Bob, I am not going to interfere with Ernie’s right to vote.”  With that, Mr. Chairperson called the vote, counting Ernie’s vote in announcing the total.

“Fine,” Bob responded.  “Have it your way.  Two can play at this game.”

Bob did not explain his cryptic remark, and the meeting continued, with Ernie on Skype, commenting and voting as well as he could from his hotel room.

Right before the next meeting Board, however, Bob sent Mr. Chairperson a note stating that he would not be attending the meeting but that his votes on the proposed motions were attached.  Sure enough, Bob had written “Yays” and “Nays” on the agenda that he provided to Mr. Chairperson.

Can Bob vote this way?  Can Ernie?

*              *              *

Starting with Bob, the answer is no – he cannot vote that way.  Boards of education are deliberative bodies.  That means that they make decisions through discussion.  A key part of that decision-making process is to listen to the perspectives of the other board members.  Voting ahead of time is inconsistent with that approach.  For example, in assessing whether a board member has a conflict of interest, we don’t only look at whether the board member voted.  Rather, we must consider whether the board member spoke in favor or against the issue.  It is through discussion and comment as well as through votes that board members affect decisions.

Given the way in which boards of education make decisions, a board member may not vote by proxy or simply mail in his or her decision.  He or she should have the benefit of hearing the discussion of the other board members before voting.  Accordingly, Mr. Chairperson was not obligated to grant Bob’s request to permit him to vote ahead of time.

By contrast, Ernie’s request to participate in the meeting by Skype is consistent with law and custom.  Starting with law, the Freedom of Information Act has provided since its inception that public officials may participate in meetings of public agencies “by electronic means.”  Ernie’s participation in meetings of the Nutmeg Board of Education by Skype, therefore, is perfectly legal.  Moreover, many boards of education permit their members to participate in their meetings by computer video-conferencing.  The devil is in the details, of course, and boards of education must think about whether and under what circumstances to permit members to participate in meetings remotely.

First, a blanket rule against such participation may be unwise. There may be circumstances in which the board desperately needs a quorum, and the only way to achieve a quorum may be to permit a member to participate “by electronic means.”

Second, electronic participation should be a second-choice. There is no substitute for being physically present to see the body language and to feel the mood in the room.  If board members can attend the meeting in person, they should do so.

Third, electronic participation raises a host of policy issues.  Should the board member attending the meeting remotely sit through the entire meeting?  What do we do if the line is busy or the connection is lost?  How do we protect the security of executive session (how do we know who else is in the room with the board member)?

Boards of education can seek to address these issues with policies and procedures.  However, it is hard to deal with every eventuality through policy, and it may be best simply to treat such participation as a procedural issue on which the chairperson should rule ad hoc, depending on the circumstances.  If the chairperson’s ruling is adverse, the affected person may appeal as with any other point of order.

In sum, it may be best, at least for now, to deal with such situations as they arise, with the overriding principles being to encourage personal participation and to allow remote participation as circumstances may warrant.

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