Eighty percent of life is showing up, according to a quote generally attributed to Woody Allen.
In the context of board membership and board meetings, this saying has special significance. Showing up for board meetings, participating in the discussions, and voting on matters are at the heart of a board member’s responsibilities.
But what happens when a board member can’t show up to a board meeting? Is there a way he or she can still participate in that meeting? If a board member misses several meetings, will it affect his or her ability to remain on the board? Here is a quick review of the rules governing board member attendance at board meetings.
What is required to have a board meeting? The Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. defines a meeting as: “any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body.
“Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.” Without an effective majority – five members on a nine member board, for instance – the meeting cannot take place.
What happens if I am running late for a meeting? Call and make sure that the board president or board secretary knows that you will be running late. First, it’s the nice thing to do. Second, your lateness may have legal implications if your presence is needed to make up the quorum or effective majority needed in order to even hold the meeting. N.J.S.A. 18A:10-6 says, in part, “All meetings shall be called to commence not later than eight p.m. of the designated day but, if a quorum be not present at the time for which the meeting is called, the member or members present may recess the meeting to a time not later than nine p.m. of said day and, if no quorum be present at that time, the member or members present may adjourn the meeting to commence not later than eight p.m. of another day, not more than seven days following the date for which the original meeting was called, but no further recess or adjournment of the meeting shall be made.”
Thus, if your presence at the meeting would be a deciding factor in determining whether the board can even hold the meeting, call ahead so that the board can begin to make contingency plans if necessary.
Can I participate in a meeting via a telephone or video conference call? Yes, provided that the board has a policy describing under what circumstances that will be permitted.
One of our board members wants to hold a holiday gathering in her home for the members of the board. Does this count as a meeting? Technically no, since they are not gathered there for the express purpose of discussing public business. But from a public perception standpoint, if it is a social gathering of only board members, what would you guess the small talk is about? Board business. It’s wise for boards to avoid board-member-only social gatherings.
What happens if I miss a meeting or two? Missing one or two meetings, although perhaps disappointing for the remaining board members in attendance, carries no penalty.
What happens if I miss three consecutive meetings? Missing three consecutive meetings without good cause may have an impact on your continued board membership. N.J.S.A. 18A:12-3 says in pertinent part, “any member who fails to attend three consecutive meetings of the board without good cause may be removed by it.” Thus, if you miss three consecutive meetings, the board may remove you after it holds a hearing regarding whether or not there is good cause for your removal.
What is involved in holding such a hearing? There is no statute or regulation that governs what is involved in this hearing. Boards of education should have a policy that governs the holding of the hearing. In Smith v. Hazlet Board of Education, a case concerning the removal of a board member, an administrative law judge said, “Removal from office is a most serious application of our constitutional democracy and that process should not be treated lightly since it directly impacts upon the rights of the electorate.” Thus, removal of a board member is not to be taken lightly.
A board that seeks to remove one of its own for missing three consecutive meetings should provide notice and an opportunity to be heard before the board to the member that it seeks to remove. This means that a notice should go out to the affected board member detailing when the hearing concerning removal will be held and the dates of absence from meetings for which the board is seeking removal.
Should the affected board member be permitted to bring his/her own attorney? There is nothing in the removal law that addresses the right to be represented at a removal hearing. This is something that should be addressed in the board’s policy. In determining this issue, the board may want to ask itself the following questions:
- Will the school board’s own attorney be present?
- Given the gravity of the potential action by the board – removal – should the affected member be given the opportunity to bring their own attorney?
- If the board does not permit the affected board member to have his or her own attorney present, does that impact the success of an appeal by the affected board member if they challenge the board’s decision?
What is the standard by which a board should make the decision to remove a board member? The standard by which a decision to remove a board member will be judged is one of reasonableness. While it is the board that determines what constitutes “good cause,” it may not remove a member for missing three meetings without reason. Specifically, if challenged, a judge will examine a board’s removal decision to make sure that it is not arbitrary, capricious or unreasonable. For instance, in Shamong Twp Board of Education v. Chwastek, a board member missed five consecutive meetings. She claimed physical incapacitation as the reason she could not attend the meetings and requested a leave of absence from the board. However, she offered no other explanation or details to substantiate her claim. Despite proper notice to the board member of the meeting at which the hearing would be held, the board member did not attend. The administrative law judge determined that, based on the facts presented, the board acted reasonably in its removal of the absent board member. The commissioner affirmed the determination of the administrative law judge.
In contrast, in the Smith case, the board member missed four meetings and provided a detailed explanation of the reasons for his absences. Three of his absences were due to childcare obligations and one was due to the board member’s own illness. The administrative law judge was not convinced that the board acted reasonably in this case. The judge pointed out that the board never questioned the explanations provided nor challenged the affected member’s claim that he provided reasons for each absence. The judge found that the board in this case had acted in an arbitrary, capricious and unreasonable manner. As the judge opined, “Would they have preferred that Smith show up and potentially infect either the Board or the general public? Or, should they have preferred to allow Smith to jeopardize his own health and safety for the sake of that one meeting? The absurdity of either such consequences speaks for itself.” While the commissioner overturned the judge’s decision on procedural grounds and sent the case back for further hearings, the Smith case illustrates that while a board has the discretion to remove one of its own for missing three meetings, such discretion is not unfettered. A clear policy and procedures governing board member attendance is warranted.
Does it matter what kind of meeting is missed? No. The statute does not specify the types of meetings that qualify under N.J.S.A. 18A:12-3. In Berg v. Black Horse Pike Regional a board member missed five meetings and the board passed a resolution removing the member. The affected member asserted that because he had only missed two regular meetings, his removal was not warranted by the board. The administrative law judge determined that the statute applied to any meeting, not just regular meetings. The commissioner affirmed the conclusion that the statute applied to any meeting, not just regular meetings of the board.
NJSBA has sample policies governing board member attendance. To receive copies of policies, or for more information, contact NJSBA’s Legal and Policy Department.