See You In Court - June 2022

As the end of the school year approaches, most of the members of the Nutmeg Board of Education are looking forward to putting the challenges of the COVID pandemic behind them.  Veteran Board member Bob Bombast, however, is not one of them.  For Bob, the pandemic was a formative experience that should result in permanent changes in how the Nutmeg Board of Education does its work.

Bob came to the Board meeting last week loaded for bear.  When the Board reached “New Business” on the agenda, Bob asked to be recognized and then proceeded to roll out his plan, “Nutmeg in the Metaverse.”  Bob explained that he wants the Board to prepare Nutmeg students to be global citizens by teaching them to do almost all their business virtually.  “No more in-person parent-teacher conferences!  No more snow days!  Options for all students to learn remotely!  And, most important, no more need to get dressed up and drive over here for these dreadful Board meetings!!”

The other Board members in Nutmeg are inured to Bob’s rhetorical exuberance, but fellow Board member Mal Content was intrigued by that last point.  “Tell me more, Bob,” Mal asked.  “How are we going to get out of coming to these Board meetings?”

Bob was only too happy to explain.  “With all we learned during the pandemic, we can simply hold all of our meeting virtually.  There is even a new law to that effect.”

“Hold on, Bob!”  Ms. Chairperson interrupted.  “This ‘new’ law simply extends the rules for remote meetings that have been in place since last June.”

“Exactly.  And under those rules all Board meetings can be conducted remotely.  Why should we waste very expensive gas driving to meetings that we can attend from our homes?”           

Ms. Chairperson disagreed.  “Some of us like to get out of the house from time to time.  As Chair, it is my prerogative to call meetings when and how I see fit.  And, please, no more of this ‘remote’ meeting nonsense.  The Nutmeg Board of Education will henceforth be meeting in person so matter what, because I say so.”

Mal Content protested.  “But remote meetings are so much more convenient!  I don’t want to have to get dressed up every time there is a meeting.”

“Exactly!” Bob interjected.  “Besides, Ms. Chairperson, as you must know, boards of education and other public agencies must now at least conduct their meetings in a hybrid fashion so that members of the public may attend the meeting by electronic means.  It would be ridiculous to require that the Board members attend in person when the public can participate in the meeting in the comfort of their own homes.”

Ms. Chairperson was unmoved.  “At the risk of repeating myself, I remind you that, as Chairperson, I call the meetings when and how I want.  And I am sick of this remote participation nonsense.  As we deliberate on the important actions we take, I want to look each of you in the eye.  We will be meeting in person.  End of discussion.”

“Wait just a minute,” Bob responded.  “What about the other elements of my plan?  Can we at least agree that all parent-teacher conferences will be remote?  And what about my plan to abolish snow days?  Is the Nutmeg Board of Education unwilling to embrace the future?

*          *          *

In some ways, the future is here, and in other ways, we must wait for the law to catch up with the lessons learned in the pandemic.

Bob should read the new law more carefully.  Public Act 22-3 does codify the rules for remote meetings, but it does not require that boards of education or (any other public agency) hold meetings remotely or in hybrid fashion, as Bob claimed.  Rather, Public Act 22-3 gives public agencies the opportunity, but not the obligation, to hold meetings either in hybrid or fully-remote mode.  The Freedom of Information Commission has prepared a helpful description of the rules for holding hybrid or fully-remote meetings, found at https://portal.ct.gov/-/media/FOI/Notices_General/New-Primer---Remote-Meetings.pdf.

Ms. Chairperson presents an interesting issue here – is hearing modality a decision left strictly to her discretion as Board Chair?  One can certainly consider that decision to be a procedural matter that is left to the board chair, but as is often the case, there is more to the story.  Board chairs act on behalf of the boards they serve, and under Robert’s Rules of Order, any member of the body can raise a point of order in response to a procedural ruling of the chair.  Moreover, if that member does not agree with the ruling, the member can appeal, and if that appeal is seconded, the full board will make the final decision on the ruling in question.  That review procedure would be appropriate if there is disagreement over hearing modality.

For her part, Ms. Chairperson should also read Public Act 22-3 more carefully.  She may be able to schedule meetings in-person in the first instance, and she may want to look Board members in the eye during deliberations.  However, Public Act 22-3 carries over a provision from June Special Session, Public Act 21-2, that gives members of public agencies the unilateral right to attend meetings remotely, even when the meeting is in-person:

Any public agency that conducts a meeting shall provide members of the public agency the opportunity to participate by means of electronic equipment, except that a public agency is not required to adjourn or postpone a meeting if a member loses the ability to participate because of an interruption, failure or degradation of that member's connection by electronic equipment, unless the member's participation is necessary to form a quorum.

Thus, Bob, Mal or any other member of the Nutmeg Board of Education can insist on attending board meetings by remote means, even when the meeting is otherwise in-person.

As to Bob’s other ideas, we note that Conn. Gen. Stat. § 10-221 was amended last year to require that boards of education permit parents and guardians to attend parent-teacher conferences by remote means as they choose.  Conversely, boards of education may provide that parent-teacher conferences will be conducted by remote means, though presumably such boards will accommodate parents who wish to attend such conferences in person.

As to remote learning, the law has not caught up with Bob’s very reasonable hope that remote learning will obviate the need for emergency closure days.  To be sure, Conn. Gen. Stat. § 10-4w authorizes school districts to offer remote instruction to grades 9-12, starting with the 2022-2023 school year, provided that (1) the board adopts a policy regarding student attendance during remote learning (which must now also prohibit dual instruction), and that (2) such remote instruction complies with the Standards for Remote Learning, Grades 9-12 published by the Connecticut State Department of Education last February.  While this new option may be helpful in making specialized courses available to high school students, such remote learning is not currently authorized for students in the lower grades.

Looking ahead, this year the General Assembly extended the remote learning option to grades K-12, but not until the 2024-2025 school year.  As with Conn. Gen. Stat. § 10-4w, boards will have to adopt related policies, and such instruction will have to comply with standards for such instruction as developed by the State Department of Education.  Given the effective date of this legislation, sadly snow days will still be with us for the next two years.