See You In Court – February 2022

Bob Bombast has served on the Nutmeg Board of Education for some forty years, but he never served as Chairperson – until now.  In the last election, six new members were elected to the Board, and they succumbed to Bob’s entreaties to elect him, the “voice of experience,” to serve as Chair.  They were soon to regret their vote.

Bob promptly asked Ms. Superintendent for an office and a dedicated administrative assistant to support him as he fulfilled the “important duties of the Board Chair.”  Then, Bob started issuing regular press releases on behalf of the Nutmeg Board of Education.

Mal Content, another experienced Board member, soon tired of Bob’s press releases, and, concerned that Bob had arrogated to himself the authority vested in the Board as a whole, Mal wrote Bob a pointed email, with a copy to each of the other members of the Board.  In his email, Mal told Bob to knock it off, explaining that Bob has no authority to speak on behalf of the Board unless the Board delegates that authority.  Bob’s Reply All was swift and strident: “Before you go shooting off your big mouth, Mal, you should read our Bylaws.  They provide in plain English that ‘the Chairperson shall serve as the spokesperson of the Board of Education.’  I will continue to do the job I was elected to do.”

Bob proceeded to do that job in his own way.  Almost every day, Bob issued a pronouncement “on behalf of the Board,” on topics ranging from mitigation measures to keep students in school to the menu for the Nutmeg Memorial High School cafeteria.  Bob also attended meetings of the various Board committees, but as far more than an ex officio member.  At a recent meeting of the Board’s Policy Committee, for example, Bob dominated the discussion and, to the annoyance of Board member Penny Pincher, who is Chair of the Policy Committee, Bob asked the other members of the Board attending the meeting to join him with the members of the Policy Committee at the table to participate in the Committee’s deliberations.

The final straw came when Bob signed a contract with a software company for some fancy new messaging system that would permit him (and other Board members who choose to do so) to issue community alerts about the Nutmeg Public Schools.  Bob’s action came to light when Ms. Superintendent received the bill and alerted Board member Red Cent, who chairs the Finance Committee.  Red was annoyed, and he sent out an email, informing the other Board members of Bob’s action.  Soon, the members of the Board were in full mutiny mode.

At the next meeting of the Board, without warning Mal Content moved to remove Bob as Chairperson for cause, and Penny Pincher promptly seconded Mal’s motion.  In his role as Board Chair, Bob opened the floor up for discussion, but then he started the discussion himself by objecting to Mal’s motion, calling it a sneak attack.  However, all the other Board members spoke out in favor of removing Bob from his position as Chairperson.  Penny complained that Bob had hijacked her Policy Committee meeting, and Mal repeated his criticism that Bob was purporting to speak for the full Board without authority.  Red Cent accused Bob of spending Board funds without authorization, and he even moved to amend Mal’s motion to add that Bob should be personally liable for the cost of the new messaging system.

Red’s motion to amend Mal’s motion failed, but the Board members voted eight to one to remove Bob as Board Chair.  However, Bob refused to relinquish the gavel, stating that he would not acquiescence in “this illegal action.”

Did the Nutmeg Board of Education violate Bob’s rights and is he still Chairperson?

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It depends on the bylaws of the Nutmeg Board of Education.  But before we discuss Bob’s rights in this situation, we will review the role of the board chairperson more generally. 

Conn. Gen. Stat. § 10-218 provides that, within a month of the time newly-elected members take office, each board of education shall “elect from its number a chairperson and elect a secretary of such board.”  To be sure, some boards of education also elect a vice-chairperson, and regional boards of education are also required to elect a treasurer.  Conn. Gen. Stat. § 10-46(d).  However, the Connecticut statutes do not include a procedure for removing a board of education officer or, more generally, a member from the board.

The quoted statute goes on to provide that the board of education may prescribe the duties of the chairperson and the secretary.  Absent a delegation of authority from the full board to the chairperson, the duties of the chairperson are typically procedural, in that the chairperson participates in setting the agenda for and presiding over board meetings.  The statutes do not confer any special powers on the board chairperson.

Acting as spokesperson for the board of education is a typical responsibility of the board chairperson, and it serves as a good illustration of the limitations on the authority of the board chairperson.  It is appropriate for the board chair as spokesperson to describe actions that the board has taken, but it is not appropriate for the board chairperson to comment substantively on behalf of the board on matters that the whole board has not acted on. 

The statutes do not set forth any procedure for the removal of board officers, but some boards of education have addressed the issue through their bylaws.  In 2005, the Connecticut Supreme Court had occasion to consider the complaint of a board of education chairperson that his board of education had improperly removed him from his office for cause.  Given that that board’s bylaws in that case provided that removal for cause was permitted only after “reasonable notice and hearing,” the court ordered the reinstatement of the chairperson because, it found, reasonable notice was not provided before the board took action.  LaPointe v. Winchester Board of Education, 274 Conn. 806 (2005).  Board of education members may wish to review their bylaws to see whether and how removal of board officers is permitted.

Bob’s short-lived reign as Board Chairperson in Nutmeg raised other issues as well.  To be sure, Bob had no business signing a contract for a messaging service without prior authorization from the Board.  Also, his actions at the Policy Committee meeting invited a complaint that the Board violated the Freedom of Information Act (FOIA).  By statute, a quorum of the full board may attend a meeting of one of its committees without posting a board meeting.  Conn. Gen. Stat. § 1-200(2).  However, Bob’s actions in inviting other Board members to participate as Board members in the Policy Committee meeting arguably caused that meeting to morph into an illegal, unposted meeting of the Board.  To avoid this risk, board members should be treated as any other member of the public when they attend meetings of committees of which they are not members.

Finally, the Nutmeg Board members have also likely violated the “meeting” requirements of the FOIA through their email communications about Bob’s performance.  Whenever a board quorum communicates “by electronic means or otherwise” to discuss or act upon a matter within its jurisdiction, the board is conducting a “meeting” under the FOIA.  Discussion by a quorum of the Board about Bob’s performance should have been limited to properly-posted meetings of the Board and should not occur among a quorum by email.