See You In Court – October 2021

The members of the Nutmeg Board of Education have been divided on the issue of remote meetings.  Board members Bob Bombast and Penny Pincher are sick and tired of meeting remotely because they thrive on personal interactions.  By contrast, Board member Red Cent is an introvert and Mal Content is a bit of a misanthrope, and they both want to continue to meet remotely.

Last month, the Board members discussed on Zoom how they want to conduct their meetings, and the discussion got more than a little heated.  Bob accused Mal of being afraid of the public, and Mal shot back with a choice vulgarity, which the IT Director bleeped out in the recording that was later posted.

Mrs. Chairperson ruled them both out of order, and made the following motion: “Future meetings of the Nutmeg Board of Education will be in-person except as the Chairperson otherwise announces in posting the agenda.”  Predictably, in the discussion that ensued, the Board members split, with Bob and Penny expressing support for the motion, and Mal and Red objecting to any procedure that would open the door to in-person meetings.  However, Mrs. Chairperson broke the tie, and the motion passed.  Mal was not happy, and when Mrs. Chairperson announced that the vote had passed, he muttered, “We will see about that.”

When the time came, Ms. Chairperson posted the agenda for the September meeting.  Mal promptly wrote to Ms. Chairperson and Mr. Superintendent, informing them that he would be participating in the meeting remotely irrespective of Mrs. Chairperson’s “ill-advised” motion.  He also demanded that the Nutmeg Public Schools provide him with a camera-equipped laptop so that he could participate remotely.  Mrs. Chairperson, however, had grown weary of Mal’s intransigence, and she wrote back, telling Mal that he should just use the same computer he had used for the last eighteen months to participate in Board meetings remotely.

Mal did so, and when the meeting started, four members of the Nutmeg Board of Education were present in person in the Board’s meeting room, and Mal’s grouchy face was projected on a big screen.  Mrs. Chairperson called the meeting to order, and after the Pledge of Allegiance, Mrs. Chairperson moved to Audience to Citizens, the opportunity for Nutmeg residents to offer words of advice and encouragement to the members of the Nutmeg Board of Education.  The first speaker was Nancy Newshound, ace reporter for the Nutmeg Bugle.

“I signed up to complain to the Board on the lack of transparency in the plans for reopening school this fall.  I heard from many families that they had many unanswered questions the first day of school.  But before I get into all that, I must lodge a protest against the Board’s procedures this evening.  As I understand the new law, if the Board runs a meeting in whole or in part electronically, then I or any other person who wants to make public comment should be able to do so electronically as well.  Like so many other people here, I would have preferred to stay home this evening and offer my helpful guidance to the Board electronically.  If Mal can stay home, why can’t the public?”

Once Mal chose to participate in the meeting remotely, was the Board obligated to give Nancy and others an opportunity to offer their public comment by remote means?

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Section 149 of June Special Session, Public Act 21-2 codifies and modifies the rules that evolved through Executive Order during the pandemic.  Section 149 now governs the situation when a public agency holds “a meeting that is accessible to the public by means of electronic equipment” (“remote meetings”). The keyword is “accessible.”  When some or all members of the public have access to a public meeting only through electronic means, the special rules in Section 149 apply.  The rules for in-person meetings, however, did not change, and the special rules set forth in Section 149 do not apply to in-person meetings, such as the meeting held in Nutmeg.

Board members have been permitted to participate in meetings “by electronic means or otherwise” since the Freedom of Information Act was enacted in 1975, and here Mal was simply participating in an in-person meeting by electronic means.  Section 149, paragraph (b), underscores that right, providing, “A public agency that conducts a meeting shall provide members of the public agency the opportunity to participate by means of electronic equipment . . . .”  By contrast, members of the public have no general right to participate in a meeting of a public agency by electronic means unless the public agency chooses to conduct the meeting in that manner.

That said, many boards of education have been live-streaming their meetings, which permits a larger audience to watch the meetings while at home.  Simply live-streaming a meeting does not trigger the special rules set out in Section 149.  When a meeting is accessible to the public in person without electronic equipment, the special rules in Section 149 do not apply.  It would be illogical to impose special rules simply because the public agency provides access to a larger audience through live streaming.

Significantly, Section 149 provides public agencies with the authority to hold remote meetings only until April 30, 2022.  However, Section 154 of the Act charges the Connecticut Advisory Commission on Intergovernmental Relations, in consultation with the Freedom of Information Commission, with conducting a study on “the implementation of [Section 149], and the feasibility of remote participation and voting during meetings, including remote voting using electronic equipment such as conference call, videoconference or other technology.”  Accordingly, we expect that authority for conducting remote meetings will continue one way or the other.

A detailed review of the special rules that apply to remote meetings is beyond our scope here, and the Freedom of Information Commission has made an excellent summary available online: https://portal.ct.gov/-/media/FOI/Notices_General/Primer–Remote-Meetings-as-of-722021.pdf.  As to the specific issues of public comment, we note at the outset that boards of education are not required to provide an opportunity for public comment.  However, when a board of education does provide that opportunity and conducts a remote meeting, the agenda must now include instructions for the public “to attend and provide comment or otherwise participate in the meeting, by means of electronic equipment or in person, as applicable.”  Moreover, when a remote meeting is conducted solely by electronic means, members of the public now have the same right to offer public comment as they would in an “in-person” meeting.  Given that the meeting in Nutmeg was in person, however, Nancy and other members of the public had no legal right to offer their “helpful guidance” to the Nutmeg Board by electronic means.