Ms. Chairperson couldn’t believe it how cold it was when she came into the Board room twenty minutes before the meeting of the Nutmeg Board of Education. She waited patiently for the room to warm up, but it did not. Right before the meeting, she found Mr. Superintendent in the back talking with Bean Counter, the Business Manager. "What’s the deal?" she asked, "Did someone forget to turn the furnace on?"
"Not at all," Mr. Superintendent replied. "With the price-gouging by the big oil companies, we have a new program, ‘Wear Your Coat Inside.’ It is really simple. We set back the thermostats to 54 degrees. If you don’t like it, you wear your coat."
It was time to start the meeting, so she told Mr. Superintendent that they were going to have to talk later about this new program. It did not take long.
"Point of order," shouted Veteran Board member Bob Bombast as soon as the meeting was gaveled to order. "It is freezing in here! Would someone tell me what is going on?" When Ms. Chairperson shrugged her shoulders and pointed to Mr. Superintendent, he explained the new initiative. Board members Penny Pincher and Red Cent applauded the good work of Mr. Superintendent. The rest of the Board members, however, were not pleased, and Bob Bombast was outraged.
"Look," Mr. Superintendent told the Board members, "I had to do something. The price of oil has been going through the roof, and at this rate we would have run out of money in the fuel oil account some time in January."
"I presume that you have a Plan B?" Bob asked, "because this coat-wearing thing will never fly with the Health Department. We are going to have to figure out a way to keep our building warm despite the high costs."
Mr. Superintendent’s next move was so adroit that some Board members suspected that he had this planned all along. The Board could save a lot of money, he said, if they would authorize him to make purchases on behalf of the Board in the spot oil market. "You have to be quick, but if I can get into the market on your behalf during the downswings, we can be toasty warm and under budget."
Suddenly, Red Cent was not so happy. He insisted that the Board must approve all contracts, and he said that he could not agree to let Mr. Superintendent buy oil without a Board vote. Penny Pincher agreed. She explained that she did not run for the Board to let the Superintendent run the district. Mr. Superintendent, however, gave this frosty response. "Suit yourself. By the time we can fit a special meeting into your busy schedules, we will have missed the market. Better get a new coat."
"Wait a minute," Ms. Chairperson interjected, "I have the answer! When Mr. Superintendent sees a propitious move in the spot oil market, he can just send us an e-mail. When at least five Board members give their approval, he can go ahead and make the buy. That way Mr. Superintendent will always be acting with our approval."
The other Board members applauded Ms. Chairperson’s creative approach, and even Mr. Superintendent was pleased. Will they turn up the heat in Nutmeg?
* * *
Probably. If anyone in Nutmeg is paying attention, there will be a complaint alleging that Ms. Chairperson’s brainstorm violates the Freedom of Information Act.
Boards of education make decisions by voting, and those votes must be recorded in the minutes of a meeting posted in accordance with the FOIA. The problem with Ms. Chairperson’s idea is that the Board members will be convening in a "meeting" without properly posting it or permitting the public to attend. The FOIA definition of "meeting" includes "any 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."
With the ease of e-mail communication, board members must be vigilant against inadvertent violations of the FOIA. To be sure, communication to a quorum of members alone is not enough to create a "meeting" – otherwise just sending out the board packet would violate the law. However, there is a problem when a board quorum discusses and/or acts upon a matter within its jurisdiction outside a meeting. Here, by exchanging e-mails to decide when to authorize Mr. Superintendent to buy oil, the Board members would violate the FOIA by holding a "meeting" and taking action without posting or giving the public access to that "meeting."
Another question here is what the Superintendent is or is not authorized to do on his own. By statute, the superintendent is the "chief executive officer of the board of education," and she or he has "executive authority over the school system and the responsibility for its supervision." However, the statutes also confer significant authority upon the board of education. Therefore it is important for boards of education and superintendents to develop a common understanding of their respective responsibilities and authority.
The appropriate allocation of responsibility between administration and board oversight is not self-defining. It is generally accepted, however, that boards of education approve expenditures (although within limits they may delegate that responsibility). Establishing the budget is a major duty of the board of education, and the statutes even make the Board of Education responsible for line-item transfers within the budget as the year proceeds. Conversely, it is clear that issues of personnel fall to the superintendent, and it is important for board members to stay out of such matters. Indeed, board member involvement in personnel matters is particularly inappropriate because they may later be required later to act as an impartial judge to consider the superintendent’s recommendation for non-renewal or termination of a teacher.
Finally, as districts struggle with higher fuel costs, the "Wear-A-Coat" program is not an option. While there is not yet a statute regulating temperature in school buildings (despite a legislature that can be hyperactive on educational issues), the Public Health Code provides that a building temperature below 65 degrees is considered injurious to health. Presumably no school district wants to be the test case on whether this provision applies to our public schools.
Thomas Mooney is a partner in the School Law practice.