See You In Court – April 2022

For some years, veteran member Bob Bombast has not worked, living off a trust fund and devoting his ample free time to the doings of the Nutmeg Board of Education.  However, with some wild fluctuations in the stock market and uncertainty as to his nest egg, Bob went out and got a job.  Mr. Superintendent congratulated Bob on his new job, and quietly breathed a sigh of relief that Bob would now back off and just let him do his job.

It was not to be.  Bob wrote to his fellow Board members and to Mr. Superintendent to say that, given the significant demands of his new job, he would not be able to attend many of the Board meetings.  However, he went on, he planned to study the agenda for the Board meetings carefully, and he would be sending his vote on the action items by email.

Bob’s new plan was put to the test at the very next meeting.  Prior to the meeting, he emailed his ally, fellow Board member Penny Pincher, with his votes on the various action items on the agenda.  Penny dutifully printed a copy of the email for the Board clerk, and came prepared to the meeting.

The first action on the agenda was appointment of personnel.  As to this item, Bob’s email conveyed his agreement with each of the appointments recommended by the Superintendent, except for one.  When the Board reached that item on the agenda, there was little discussion, and Ms. Chairperson called the vote.  When it was her turn, Penny voted in favor of each of the persons nominated for appointment.  As Ms. Chairperson then started to ask the next Board member for his vote, Penny interjected, “Wait!  There is more.  Bob Bombast votes in favor of each of these appointments except for the nomination of Joe Broom for the Director of Maintenance position.  Bob asked me to explain that Joe is his second cousin, and he will be abstaining from voting on Joe’s appointment.  But Bob also wants the other Board members to know that he thinks that Joe is the perfect fellow for this position, because he is really good at fixing things, as he has seen at family events.”

“Point of order!” Board member Mal Content interrupted.  “What’s this with the proxy voting.  If Bob cannot find the time in his ‘busy schedule’ to get here like the rest of us, he certainly can’t vote.”

Before Ms. Chairperson could rule on Mal’s point of order, Penny started waving the email from Bob around, telling anyone who would listen that she had Bob’s votes in black and white.  Moreover, Board member Red Cent offered his two cents that things will go a lot more smoothly if the Board just lets Bob vote by email so that the Board won’t have to listen to Bob blathering on over every issue.  Ms. Chairperson agreed, declaring Bob a “yes” vote on all the appointments except for that of Joe Broom, which she marked as an “abstention.”

The meeting went on, and Penny cast Bob’s votes on the other agenda items as the Board moved through its agenda.  But Mr. Superintendent asked that the Board add an item to the agenda.  With the spike in fuel prices, Mr. Superintendent reported, it had been necessary immediately to transfer $200,000 from the substitute account to cover the higher fuel prices.

Board member Red Cent expressed concern because, high fuel prices or not, teacher absences are a continuing problem for the Board, and he asked Mr. Superintendent exactly how the district would pay for substitutes if the account for that purpose is depleted.

“Too late!” Mr. Superintendent responded.  “I already made the transfer.  I just wanted the Board to know about it.”  Should the Nutmeg Board of Education worry?

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This meeting of the Nutmeg Board of Education actually gives the Board a lot to worry about.  Taking the last issue first, Mr. Superintendent should read Conn. Gen. Stat. § 10-222.

That statute governs the budget and expenditure process for local boards of education in Connecticut.  Significantly, Section 10-222 provides that the appropriations municipalities make to boards of education may be expended “by and in the discretion of the board of education.”  Moreover, in exercising that discretion, boards of education are authorized to transfer funds from one line item to another.  The statute defines “item” for purposes of transfers broadly: “For purposes of this subsection, . . . “itemized estimate” means an estimate in which broad budgetary categories including, but not limited to, salaries, fringe benefits, utilities, supplies and grounds maintenance are divided into one or more line items.”

That said, the statute now includes special rules regarding budget transfers, rules that Mr. Superintendent may not have followed.  The basic premise of Section 10-222 in this regard is that, given the responsibility of boards of education for overseeing expenditures as the year progresses, boards of education should make any necessary budget transfers from one line item to another except in emergencies.  The statute further provides that boards of education may “authorize designated personnel to make limited transfers under emergency circumstances if the urgent need for the transfer prevents the board from meeting in a timely fashion to consider such transfer. All transfers made in such instances shall be announced at the next regularly scheduled meeting of the board and a written explanation of such transfer shall be provided to the legislative body of the municipality.”  Given these requirements, boards of education should keep two things in mind.  First, they are well-advised to define “line items” broadly as permitted by the statute so that line item transfers are rarely necessary.  Second, as long as boards of education themselves make necessary transfers, the special announcements and notifications required by the statute will not be required.

Besides the budget transfer issue, the Nutmeg Board had to deal with two issues raised by Bob Bombast’s efforts to participate in its meeting through Penny Pincher by proxy.  It is perhaps intuitively obvious that board of education members cannot vote by proxy.  However, it may be helpful to discuss why that is so.  Boards of education make their decisions through a deliberative process, whereby the members share their thoughts and perspectives through the discussion that precedes a board vote.  When Bob “voted” by email in advance of the meeting, he had not heard any of the discussion, and that discussion could well have changed his vote.  Accordingly, board of education members should hear the discussion before they vote.  Indeed, when board members participate in meetings remotely, they should always be “present” for pre-vote discussions before they should be permitted to vote.

Finally, Bob violated a basic rule that applies to conflicts of interest.  Appropriately, Bob disclosed that Joe Broom is a relative, which could cause him to abstain from voting.  A family relationship could either impair objective decision-making or create the appearance of conflict, either of which could cause a board of education member to abstain.  However, Bob erred when he went on to speak in favor of the candidate.  Given that board of education decision-making is a deliberative process, a comment by a board member on a matter involving a conflict of interest could affect the result in the same way a vote could.  Therefore, when a board member has a conflict of interest, he or she should abstain.  As they choose, board members can explain that there is a conflict, but they should not comment on the merits.