See You In Court - April 2025

Nellie Nervous had thought it would be great to serve her hometown of Nutmeg by getting elected to the Nutmeg Board of Education.  The campaign was hard fought, but by knocking on doors and attending every event she could think of, she won the election last November.  However, it did not take long for Nellie to realize that the pressure of Board service was taking a toll on her health.  At the meeting last month, Nellie got up from the Board table, told the Board members that she quit, and she walked out of the meeting.

Veteran Board member Bob Bombast was the first to break the stunned silence, saying “I guess we’d better find ourselves a new Board member.  I move that we create a ‘personnel search committee’ and appoint us Board members to serve on the committee.  That way, we can find the best candidate to fill the vacancy out of the public eye.”

Fellow Board member Mal Content is a bit of a know-it-all, and he quickly moved to shut Bob’s idea down.  “Nice try, Bob.  The personnel search committee gambit worked when we were looking for a new high school principal, but we can’t do that to fill a vacancy on the Board.  We will have to find a new Board member in public.”

Bob persisted with his proposal, and he made a motion to appoint the members of the Board to a personnel search committee for the purpose of filling the vacancy.  However, Mal’s objection carried the day, and Bob’s motion failed for want of a second.  The Board was then left with the need to deal with the vacancy.

“Let’s get some recommendations from RANT (Residents Against New Taxes),” Board member Red Cent urged.  “We need a fiscal conservative to protect the taxpayers from unnecessary expense.”

“I agree!” responded Penny Pincher.  “Taxes are already too high here in Nutmeg.” 

“Hold on!” Ms. Chairperson interjected.  “We shouldn’t rely on RANT to pick the person.  We need to set up interviews with people interested in serving on the Board with us.”  With that, the Board moved on, and the next day Ms. Chairperson asked Mr. Superintendent to post a notice on the district’s website inviting people to apply for the vacancy.

The Superintendent posted the notice, and in the next few days five different residents expressed interest in serving on the Board.  However, given other business Ms. Chairperson did not take any further action until Mayor Megillah prodded her.  Specifically, he wrote to warn Ms. Chairperson and the other Board members that he was prepared to fill the vacancy if the Board would not.  

Ms. Chairperson wrote back to the Mayor to say that she didn’t see how the vacancy on the Board of Education was any business of the Town, but she did go ahead and schedule a special meeting of the Board to conduct interviews with the five interested people.  When the meeting started, Ms. Chairperson asked for a motion to convene in executive session for the purpose of interviewing candidates to fill the vacancy.  However, local reporter Nancy Newshound spoke up to object.  “The public has the right to know what promises these candidates may be making to the Board as they seek appointment.  These interviews must be conducted in open session!”  

“That’s fake news, Nancy,” responded Ms. Chairperson.  “Out of respect for the interested candidates, we will conduct these interviews in executive session.”  The Board agreed, and the members interviewed the candidates separately in executive session.

Was executive session proper for this purpose?

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Yes.  The Freedom of Information Act (FOIA) provides that executive session is proper for specified purposes, including “Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting.”  We thus note that boards of education are authorized to discuss in executive session the “appointment” of a “public officer” (e.g., board of education member) to fill a vacancy.  While that may seem obvious, this conclusion was the subject of a decision of the Connecticut Supreme Court in 1989.  Board of Education of the City of Danbury v. Freedom of Information Commission, 213 Conn. 216 (1989).  As with the discussion of a public employee, however, a candidate may require that the discussion be held in open session, and candidates being interviewed or otherwise discussed in executive session must be notified in advance so that they may exercise this right.  Any appointment, in any event, must be made in open session.

This situation raises other legal issues as well.  The filling of vacancies on boards of education in Connecticut is governed by Conn. Gen. Stat. § 10-219 as follows:

If a vacancy occurs in the office of any member of the local board of education, unless otherwise provided by charter or special act, such vacancy shall be filled by the remaining members of said board until the next regular town election, at which election a successor shall be elected for the unexpired portion of the term, the official ballot specifying the vacancy to be filled.

We see that the general rule is that the remaining members of the board may fill the vacancy at their discretion.  However, such action by the remaining members of the board is subject to any applicable charter provisions.  Such charter provisions may specify another process for filling vacancies, or they may simply require that the person filling the vacancy be of the same political party as the person leaving the board.  

The Nutmeg Board was wise to act after being prompted by Mayor Megillah.  Conn. Gen. Stat. § 7-107 provides that, where a town board or commission has the power by law to fill a vacancy but fails to do so within thirty days after it occurs, the board of selectmen or the chief executive officer of the town may appoint a qualified person to the vacancy until the next municipal election.  As long as the Nutmeg Board of Education fills the vacancy within thirty days (or at least before the Town takes action), the provisions of Section 7-107 will be moot.

We also note that the Board properly rejected Bob’s proposal to create a personnel search committee for the purpose of filling the vacancy.  The FOIA gives public agencies the opportunity to conduct a search process without posting their meetings by creating a “personnel search committee” for that purpose.  However, that provision is limited to searches for “candidates for an executive-level employment position,” and board members are of course not employees.  

Finally, we note that Nellie said that she “quit” the Board and walked out.  More is required.  Board members represent the town (or towns) that elect them, and for some purposes are therefore town officials.  Board bylaws may govern the procedures for a board to accept the resignation of a board member, and any such procedures should be followed.  However, in any event a member of a board of education who is resigning his or her position should submit a letter of resignation to the town or city clerk to make it official.