SEE YOU IN COURT - July/August 2018

Bob Bombast was watching “Fox News” on June 27 when the scroll at the bottom of the screen caught his eye.  “Supreme Court strikes down agency fees; deals big blow to public sector unions!!”  Though Bob had chaired the Personnel Committee for the Nutmeg Board of Education for many years, he had no idea that the various Board employees did not have to be union members, and he had never heard about agency fees.  But being intellectually curious, Bob found the Court’s opinion in Janus v. AFSCME online, read the syllabus and some of the press coverage, and Bob decided to share this news with the Personnel Committee. 

Bob emailed Penny Pincher and Mal Content, the other members of the Personnel Committee, with a copy to Mr. Superintendent and the other Board members.  In the email, Bob described the Court’s decision, and he informed everyone that he was calling a meeting of the Personnel Committee for the following Thursday to review the implications of the decision for the Nutmeg Public Schools. 

Mr. Chairperson promptly responded to Bob that he would like to attend the Committee meeting as well, because he too is interested in learning more about the Janus decision.  Indeed, within twenty-four hours all of the Board members had informed Bob that they would also be attending the next meeting of the Personnel Committee.  Bob, who never shied away from the limelight, grandly thanked the Board members for their interest and promised them an enlightening evening.  Bob was so pleased with the response to the announced Personnel Committee meeting that he even invited local reporter Nancy Newshound of the Nutmeg Bugle to the meeting.

Given that Personnel Committee members usually met alone, Bob Bombast beamed as he looked out at the full room, with the other Board members and Nancy Newshound sitting in the front row.  Bob opened the meeting by describing the Court’s decision, which holds that compulsory agency fees for non-members violate the free speech rights of those employees, and Bob recommended that the Personnel Committee notify all Board employees of this new ruling.  After a brief discussion among the Committee members, Bob opened the meeting up to public discussion.  First to raise his hand was Mr. Chairperson, whom Bob promptly recognized.

“I don’t know why we would have to tell everyone about the decision,” Mr. Chairperson asked rhetorically, “since it only affects agency fee payers.”  But before Bob could respond, Nancy Newshound piped up.

“I think that this is an illegal meeting!” Nancy announced.  “The meeting is posted as a Personnel Committee meeting, but all the members of the Board are here tonight.  This is an unposted and illegal meeting of the Nutmeg Board of Education!”

“That’s what I get for inviting you, Nancy?” Bob snapped back.  “This is my meeting, a public meeting of the Personnel Committee, and if the other members of the Board want to attend, that is their right!”

Who’s correct here, Bob or Nancy?

*          *          *

Surprise!  Bob Bombast is actually correct this time.  Nancy is relying on the general rule – a meeting under the FOIA occurs whenever a quorum of a public agency assembles or convenes.  Conn. Gen. Stat. § 1-200(2).  Without more, Nancy would have been right.  Though the meeting was posted as a meeting of the Personnel Committee, a quorum of the entire Nutmeg Board of Education was present discussing Board business.  So how can Bob have been correct?

Bob was correct here because there is more to Conn. Gen. Stat. § 1-200(2), quoted above.  The statutory definition of “meeting” also provides that a quorum of the members of one public agency can attend a posted meeting of another public agency without being deemed to be holding a meeting themselves.  For example, a quorum of the Nutmeg Board of Education can attend a meeting of the Nutmeg Board of Finance (if it would ever want to do so) without having to post its own meeting.  Similarly, here the meeting of the Personnel Committee was posted, and thus a quorum of the Nutmeg Board of Education could attend the meeting without having to post a separate meeting.

That all said, boards of education and their committees must be careful.  Specifically, it is important that the meeting be conducted as posted and that another public agency not take over the meeting.  In this example, it would be important for Bob to maintain the meeting as a meeting of the Personnel Committee, and he should not give special speaking or other privileges to the Board members who attended his meeting.  Had all the Board members sat at the table and participated equally in the discussion, Nancy would have been correct in her claim that the meeting had morphed into an unposted and thus illegal meeting of the Board of Education.

Bob called the meeting of the Personnel Committee to discuss the decision of the United Supreme Court in late June in Janus v. AFSCME.  Over forty years ago, the Court held that public sector non-union members could be required to pay an agency fee for the proportional cost of collective bargaining, contract administration, and grievance adjustment, union services that benefit all members of the bargaining unit.  However, on June 27, 2018, a five-four majority of the Court overruled that precedent, holding in Janus that mandatory agency fees violate the First Amendment rights of the affected public employees.  The Court’s reasoning is that even collective bargaining is speech, and that the government may not require public employees to participate in the union’s speech (here by paying an agency fee) if they do not wish to do so.

The implications of the decision are both clear and unknown.  What is clear is that all agency fee deductions must stop immediately.  What is also clear is that the decision has no impact on dues-paying members of the union, who perforce have voluntarily authorized deductions of dues from their pay.  What is unknown are the implications of the decision over the long term, now that the choice for employees is no longer between paying 100% of union dues or around 90% of that amount as an agency fee, but rather the choice is between 100% and nothing.  Given the strength of unions in Connecticut, however, it may well be that the overwhelming majority of unionized employees maintain their memberships in their respective unions.

Finally, boards of education must take care in how they communicate about the decision.  Indeed, other than to notify agency fee payers that they are now relieved of the obligation to pay an agency fee, boards should have no comment to their employees about the decision.  In this regard, Mr. Chairperson was right and Bob was wrong.  Dues-paying union members are not affected by Janus, and the Nutmeg Board of Education has no need to communicate with them about the decision.  Indeed, to do so could be construed as an attempt to interfere in the private affairs between a union and its members.