SEE YOU IN COURT - April 2018

After serving as Chairperson of the Nutmeg Board of Education for six long years, Mr. Chairman announced unexpectedly at the last meeting in February that his company had transferred him to Illinois. At what would be his last meeting, Mr. Chairperson told his colleagues that they were the best board members in Connecticut, all appearances to the contrary notwithstanding. For their part, the other Board members perfunctorily thanked Mr. Chairperson for his service, but then immediately started discussing who should take over as Chair. As it turned out, only Bob Bombast and his nemesis on the Board, Mal Content, were interested. With two vying candidates, however, the Board didn’t know what to do.

Mr. Superintendent tries to stay clear of intra-Board issues, but he couldn’t resist offering a suggestion that night. “The Board should convene into executive session and interview both Mal and Bob, and then you can vote to elect a new Chairperson.” The Board thanked Mr. Superintendent, and the Board did just that, after adding “Discussion of candidates for Board Chair” to the agenda by a two-thirds vote. Bob and Mal then made their pitches to their fellow Board members in the executive session, and the Board reconvened in open session to vote by secret ballot.

Before the voting began, Mr. Chairperson announced that he would not vote, and the remaining Board members split evenly between Bob and Mal. It was 4-4 on the first ballot, and it was 4-4 on the second ballot. Board members looked around curiously, trying to figure out who was voting for whom, but in voting two more times, the Board members deadlocked again 4-4 both times.

Mr. Chairperson was concerned that the Board should figure something out before he left for Illinois, so he proposed that Penny Pincher, currently the Board secretary, be named Chairperson Pro Tempore at the next meeting, to serve until the Board breaks the tie and elects a new Chair. After teasing Mr. Chairperson about his fancy words, the other Board members voted unanimously to elect Penny as Chairperson Pro Tempore, commencing with the next meeting.

Penny convened the next Board meeting, and she did a nice job. On the agenda that evening was the vote to fill the vacancy on the Board, and the Board promptly elected Nick Newbie, who was suggested by the Town Committee of Mr. Chairperson’s party. The Board also held another secret ballot election for a new Chair, but the Board deadlocked again, given that Nick chose to abstain. Bob Bombast even joked about how stubborn they all must be. The meeting ended with agreement that Penny would continue on as Chairperson Pro Tempore, i.e., on a temporary basis.

Two days before the April meeting, the Board members were shocked to read in the Nutmeg Bugle that Mayor Megillah, citing the need for fresh blood, had announced that he has appointed Nick Newbie to serve as Chair. You could cut the tension with a knife as the Board members gathered before the next meeting. Penny sat grimly at the head of the Board table, holding the gavel tightly in her hand. Nick approached her sheepishly, and he asked her to turn over the gavel to him.

Should she?

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Given that more than thirty days have passed since Mr. Chairperson left the Board, Mayor Megillah probably had the right to take the action he took. The Nutmeg Board of Education lost an opportunity to control its own fate, and it violated the Freedom of Information Act along the way.

By statute, boards of education must have only two officers – a chairperson and a secretary. Conn. Gen. Stat. § 10-218. Regional boards of education, by contrast, must have a chairperson, secretary and treasurer “and any other officer deemed necessary.” Conn. Gen. Stat. § 10-46(d). Local boards of education, however, can create other board offices (such as that of vice-chairperson) and describe their duties by bylaw.

The statutes also specify that the remaining members of boards of education have the authority to fill vacancies that may arise “unless otherwise provided by charter or special act.” Conn. Gen. Stat. § 10-219. The Nutmeg Board of Education discharged that duty by electing Nick Newbie. However, the Board dropped the ball in its delay in electing a successor to Mr. Chairperson, thereby opening the door to Mayor Megillah’s action. Conn. Gen. Stat. § 7-107 provides: “Except as otherwise provided by law, if any vacancy occurs on any town board or commission, and such board or commission has power by law to fill such vacancy but fails to do so within thirty days after it occurs, the board of selectmen or chief executive authority of such town may appoint a qualified person to fill such vacancy until the next municipal election.” While there is some room for argument over whether the vacancy in the chairperson office is a “vacancy . . . on any town board or commission,” Mayor Megillah has a good argument that by statute he had the right to fill the vacancy and name Mr. Chairperson’s successor after thirty days had elapsed.

This problem of a deadlock over the election of board officers would not arise with a regional board of education. The statutes expressly provide that a tie vote for the election of an officer for a regional board shall be “broke by lot.” Conn. Gen. Stat. § 10-46. Also, when a vacancy on a regional board of education arises, the affected town must hold a town meeting to fill the vacancy within thirty days. Id.

As to the Freedom of Information Act, the Nutmeg Board of Education made two mistakes. First, there is no provision under the FOIA for a “secret ballot” election. Rather, the votes by each member of a public agency must be cast in public, and a record of those votes must be included in the minutes of the meeting. Moreover, the Board also violated the FOIA by voting for a successor chairperson after adding the item “Discussion of candidates for Board Chair” to the agenda, because that agenda item was limited to discussion. “Discussion and possible action” would have been the better formulation.

Finally, the Board did one thing right. Given that the executive session privilege extends to “discussion concerning the appointment . . . of a public officer,” the Board was free to discuss the candidacy of both Mal and Bob in executive session. Indeed, the Connecticut Supreme Court has confirmed that boards of education may discuss candidates for appointment to the board in executive session. However, as with employees, both Bob and Mal would have the right to require that the discussion as to them be held in open session.