See You In Court - October 2022

The meetings of the Nutmeg Board of Education had been running four or more hours each night, because of the long speeches veteran Board members Bob Bombast and Mal Content would make on virtually every topic.  Mr. Chairperson decided that he needed to do something, and at the first meeting of the new school year, he asked the Board to create four new committees, Policy, Finance, Facilities and Personnel.  He was taking this action, Mr. Chairperson explained, to expedite Board meetings by delegating Board business to these new standing committees.  The Board promptly created these new committees by unanimous vote.

Mr. Chairperson then announced the names of the Board members who would be chairing these committees: Bob Bombast for Policy, Penny Pincher for Finance, Mal Content for Facilities, and Red Cent for Personnel.  Mr. Chairperson appointed two other Board members to each of these committees, and he told each of these committee chairs to do their work and bring their recommendations back to the full Board for action.

Bob Bombast eagerly accepted this new responsibility.  He promptly called Penny Pincher, another member of the Policy Committee, to suggest that the Board should adopt a new policy requiring student athletes and their families to “pay to play,” i.e., pay a fee set for each sport.  Penny agreed to Bob’s idea because it would generate revenue for the athletic programs, and Bob thought he was all set for the next meeting of the Policy Committee.  However, Penny has a big mouth, and soon all the Board members knew of Bob’s plan.

When Bob convened the next meeting of the Policy Committee, he was surprised to see all the Board members in the room.  “I am concerned,” Bob started, “that we have a quorum of the full Board present here, even though this meeting is posted only as a meeting of the Policy Committee.  I must ask that Board members who are not members of the Policy Committee leave now so that we do not have an illegal, unposted meeting of the full Board.”  The Board members who were not members of the Policy Committee were disappointed at the news, but they left the meeting, with one exception.  Mr. Chairperson settled in and explained that, as chairperson of the Board, he is an ex officio member of all Board Committees.

Bob shrugged his shoulders at the news, and he convened the meeting.  He announced that the Committee would skip over the approval of the minutes because committees don’t really have minutes anyway, and he called for discussion on the first agenda item – “Pay for Play.”  Bob and Penny spoke in favor of the new policy, but Mal Content, the other member of the Committee, said that he could not support the policy because it would impose new burdens on Nutmeg families.  Bob then called for a vote, confident that his proposed new policy would pass with two votes to one.  He was surprised, therefore, when Mr. Chairperson voted with Mal against the proposed policy, creating a tie that defeated the motion.

“Hold on,” said Bob.  “What if I told you that ex officio members of committees can’t vote?”

Mr. Chairperson responded to Bob’s question, “Au contraire, Bob!  What if I told you that I will remove you as chair of this committee if you don’t let me vote?”

Does Mr. Chairperson have the right to vote, and can he really remove Bob as Chair of the Policy Committee if he wants to do so?

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Committee work is an important part of board of education functioning in many school districts, and it is important to understand the mechanics of committee operation.

First, Mr. Chairperson properly asked the Board to create these committees, and thus the next question is whether Mr. Chairperson had the authority to name Board members to these committees and designate the chairs.  Most boards of education follow Robert’s Rules of Order for their procedures, and Robert’s Rules leaves to the entity (here, the board of education) the choice as to how committee members are appointed and chairs designated.  However, most boards of education give the chairperson the authority both to appoint members to committees and to designate the chairpersons.

The events surrounding the meeting of the Policy Committee here raise three FOIA concerns.  First, committees are public agencies subject to the provisions of the Freedom of Information Act.  Accordingly, committees must post their meetings, and committee meetings must be open to the public (except for any appropriate executive session).

A “meeting” under the FOIA occurs when there is “communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”  Bob’s discussion with Penny about the policy he is proposing, therefore, would be considered a “meeting,” and that “meeting” violated the FOIA because it was not posted.  Bob should have waited for the posted meeting to propose his new “Pay for Play” policy to the Committee for its consideration.

Second, Bob did not have to ask Board members who were not on the Policy Committee to leave.  A quorum of a public agency (here the Board) may attend a meeting properly posted by another public agency (here the Committee) without separately posting the meeting (as long as it does not morph into a meeting of the other public agency).

Third, Bob was incorrect in saying that the Policy Committee did not have to keep minutes; as a public agency, it must do so, and the minutes must be available within seven days of the meeting.  However, the FOIA requirements for minutes are limited – they must state when the meeting convened, who attended, how members voted on any motions, if there was an executive session, the reason therefore and who was in attendance in the executive session (except for job applicants being interviewed), and when the meeting adjourned.

As to the showdown between Bob and Mr. Chairperson, we note the general guidance under Robert’s Rules (which is subject to modification through a board’s bylaws): when the board chair is a member of committees ex officio (by virtue of his office), his or her presence is not counted in determining a quorum.  However, ex officio members have the same voting rights as other committee members, and Mr. Chairperson properly voted to create the tie.

As to Mr. Chairperson’s threat to remove Bob as chair of the Policy Committee, Robert’s Rules provides (again subject to modification through the bylaws) that the appointing authority has the power to remove.  Accordingly, if Mr. Chairperson has the authority to appoint committee chairs, he has the right to remove them.

Finally, Bob and the Policy Committee should understand that committees work on behalf of the full Board.  Committees have no authority to take binding action.  Rather, they simply make recommendations, and the decision ultimately will be made by the full membership of the Board, irrespective of how the Policy Committee votes on a matter in the first instance.