So You Need A New Board Member: Legal Concerns When Filling Vacancies

LR-PencilFor better or worse, elected municipal officials (such as school board members) are sometimes unable to complete their term of office, and thus boards of education are faced with having to fill vacancies. Here is a brief primer of legal considerations that may arise when filling the seat.

When does a resignation take effect? State law provides that municipal officers seeking to resign from office must submit a resignation in writing to the municipal clerk; the resignation takes effect upon the date specified in the resignation or, if no date is specified, upon the date of its submission to the clerk. Connecticut General Statutes §7-103.

How do you fill the vacancy (and who gets to fill the position)? Unless otherwise provided by a charter (or special act of our legislature), the remaining members of a local board of education are empowered to fill the vacancy until the next regular town election, at which time a successor shall be elected for the unexpired portion of the term. Connecticut General Statutes §10-219.

How long do you have to fill (and what happens if you do not fill) the vacancy? State law authorizes a town’s board of selectmen or its “chief executive authority” to fill a vacancy on “any town board” where a board fails to do so within thirty days after the vacancy occurs. Connecticut General Statutes §7-107.  It is not clear whether the courts could interpret this statute as applying to a local school board vacancy that has not been filled within thirty days.  In addition, attention may have to be paid to local charter provisions for further limitations with respect to a board of education’s right to fill a vacancy in its membership.

Political parties and the “minority representation” statute.  Generally, most municipal bodies are subject to a state “minority representation” statute that serves to prevent a single political party from dominating.  The maximum number of members of any such bodies who may be members of the same political party is two-thirds of the total membership. Connecticut General Statutes §9-167a(a).  There are exceptions contained within the minority representation statute (for example; boards whose members are elected in whole or in part on the basis of a geographical division within the political subdivision at issue).

Can town charters provide a stricter minority representation requirement? Yes. A town (via a special act of the legislature or by charter) is allowed to provide for a greater degree of minority representation than is provided by the state minority representation statute. Connecticut General Statutes §9-167a(e).

So must we appoint someone who belongs to the same political party as the person resigning? Generally, no. State law only requires that a vacancy be filled with a member of the same political party when the board has already achieved maximum “majority” representation and then only when the vacating member is of the minority party.  See Connecticut General Statutes §9-167a(d); Grodis v. Burns, 190 Conn. 39, 45 (1983).  A town by charter could arguably mandate that a vacancy be filled by a person of the same political party as the former member.

Can boards discuss filling vacancies in executive session?  Generally, Connecticut’s Freedom of Information Act permits executive sessions for board discussions concerning the appointment of a public officer, provided that such individual may require that the discussion be held at an open meeting.  This executive session exception covers a discussion by a board of education on filling a vacancy on its membership.  This exception applies to both the interviews of candidates for a vacancy and the subsequent deliberations by a board, subject to the right of a candidate to insist that the portion of the interviews and discussions dealing with his/her candidacy be in public.  See Understanding the Connecticut Freedom of Information Act and Access to Public Meetings and Records, by Mark J. Sommaruga (4th Edition, 2013), p. 29. Of course, the vote by the board must take place in public, with the votes by the individual board members on the candidates also public.

So what about regional school boards? There are special statutory provisions for filling vacancies on a regional school board. See Connecticut General Statutes §10-46(b) and (c). If regional board members are selected “at large”, a meeting of the voters of the regional school district is empowered to fill the position for the remainder of the unexpired portion of the term.  If the members are elected in a member town in the same manner as other town elected officials, the legislative body of the effected town selects a successor to fill the vacancy until the next regular town election, at which time a successor is then elected for the unexpired portion of the term.  Finally, if members are selected by a member town at a town meeting, a vacancy is likewise filled by the town meeting for the remainder of the unexpired portion of the term.  While the overall composition of a regional school board is generally not subject to the minority representation statute, a member town by charter could arguably apply a minority representation requirement to that town’s selections to the regional school board where members are not selected at-large.

Can boards of education establish a specific process for filling vacancies? Yes. Through their by-laws or policies, boards can specify a method for filling vacancies, such as taking applications and interviewing candidates.  It may be prudent to have a policy governing board vacancy issues such as the process for soliciting candidates, the application process, and board voting procedures (e.g., use of ballots where there are multiple candidates, minimum number of votes needed to prevail, procedures for when the first round of voting does lead to a selection). In the absence of a contrary policy, Robert’s Rules of Order may be applicable to the selection process.