Point of Order

The Board of Education in the Clarkstown Central School District is mandated to operate within a series of New York state laws – notably the Open Meetings Law – and the CCSD’s own policies.  Those laws and by-laws subject the Board, as a parliamentary body, to the procedures of Robert’s Rules of Order (the Rules). Quoting the Introduction of Robert's Rules of Order Newly Revised (11th ed.):
The application of parliamentary law is the best method yet devised to enable assemblies of any size, with due regard for every member’s opinion, to arrive at the general will on the maximum number of questions of varying complexity in a minimum amount of time and under all kinds of internal climate ranging from total harmony to hardened or impassioned division of opinion.
Failure to abide the Rules is a breach of duty that causes disorder, confusion and continually deferred decisions.  This impacts the work of the district, frustrates district employees and discourages public participation.  Indeed, the Rules were created to prevent such disorder.  Brigadier General Henry M. Robert served as Chief of the US Army Corps of Engineers.  Active in civic and church groups, he grew frustrated that meetings were rendered inconclusive and slowed down by interruptions, repetitive questions and off-topic conversation.  He spent several years researching parliamentary law and writing his Rules of Order in plain language.  Of his work, he said:
It is difficult to find another branch of knowledge where a small amount of study produces such great results in increased efficiency in a country where the people rule, as in parliamentary law.
General Robert: “Follow the rules!”
The October 5th meeting of the Board ended with many issues left undecided or unaddressed.  This includes the permanent appointment of a principal at the West Nyack Elementary School, a settled pay rate for all substitute Teaching Assistants and, of course, the RFP for the Special Education Program Evaluation, which has been before the Board in its current form for over a year.
They could be sticking this on the RFP cover page.

It is the duty of the Board members to advance the District’s business, not impede it indefinitely.  A common explanation among the community for the cause of these and other deferred decisions is a political 4-3 split among the Board members.  Even if there is some truth to the impact of this political split – and there should not be – it is only a symptom of the dysfunction in the Board’s proceedings.  It must be reiterated that General Robert wrote the Rules so that business can move forward despite “hardened or impassioned division of opinion.”  The real problem is that the Board, at least in the context of public meetings and debate, is not properly following the procedures and the Rules

The CCSD By-Laws of the Board clearly state: “The parliamentary rules guiding the conduct of meetings and the business of the board shall be the rules of parliamentary procedure as laid down in "Robert's Rules of Order," and shall be available at all meetings except where such procedure is in conflict with educational law.”  To date, no such conflict with educational law has been cited to explain the inconsistent application of the Rules at Board meetings.
Time to get the Rules out of storage. 

The extent of the disorder is becoming quite apparent.  The October 5th Board meeting began and ended with no clear explanation of how the September 8th meeting concluded.  In fact, there are several significant questions about the business of that September meeting, especially on three key points:
  • First, a motion was made and seconded to vote on the approval of the RFP for the Special Education evaluator.  The vote was 3 in favor, 1 against, 1 absent and 2 abstaining.  In theory, it did not carry.
  • Second, a motion was made that all Board members should be provided with communications between some Board members and a law firm retained in connection with an earlier effort to terminate Dr. Keller-Cogan’s contract.  Mr. Katz moved to adjourn to Executive Session, which was not seconded.  He then moved to adjourn the meeting, also not seconded. 
  • Third and finally, Mr. Katz simply called the meeting adjourned.  
The President of the Board does not have the power to adjourn a meeting, which must be done by a motion, second and vote.  Even a motion to adjourn cannot be made while there is still open business before the Board.  Mr. Malgieri’s second motion was in the midst of debate when the meeting suddenly ended.  

At the October 5th meeting, Mr. Katz publicly apologized and said his action was a mistake, yet he did not resolve the questions that the improper adjournment raised. 

It is clear, though, that he would like that meeting to be considered closed.  It was suggested that if Board members leave a meeting and quorum is no longer maintained, the meeting is adjourned.  Yet, all six members of the Board remained in attendance.  It was also suggested that the Rules could be suspended, which is not only highly undesirable but without provision in either the By-Laws or the Rules

The minutes of the September 8th meeting said that the motion to adjourn was made by Mr. DeGaetano (it was Mr. Katz) and seconded by Mrs. Ehrenberg (it was not seconded) without a vote (okay, that part is right).  Mr. Katz pushed for and received a motion to hold approval of the minutes until the author could explain her description of that meeting’s adjournment, but the author’s explanation is irrelevant.  

As said before, the point is that the record shows that the September 8th meeting was not properly adjourned.  Therefore, in accordance with the Rules, all open business - that is, the session of the meeting - that was before the Board at that meeting remains open and should have been the first order of business at the October 5th meeting.  If it is to be argued that the September 8th meeting was properly adjourned, then the minutes should include some supporting citation in the Rules, the By-Laws or the State laws to explain that argument.

Because we haven’t found it…
Now, let us suppose that there is found some supporting and inherently contradictory evidence to say that the Board President can, in fact, end a meeting legitimately through an admittedly mistaken action.  What does that do to Mr. Malgieri’s second motion regarding legal communications?  It was certainly not settled at the September meeting.  It also did not qualify, as motioned by Mr. Katz, to be a topic for Executive Session, the requirements for which are clearly stated in the CCSD By-Laws of the Board and the Open Meetings Law.

Indeed, one must wonder why Mr. Malgieri’s motion regarding communications between Board members and attorneys was even necessary.  The By-Laws of the Board, Article 8, Section 8220, 9-A, state, “each board member must have access to the same information relevant to board business.” 

And what of the motion on the RFP for the Special Education evaluator?  It has been argued here that if the September meeting was, in fact, adjourned and closed, and the motion to approve the RFP did not carry, then the RFP could only be reconsidered at the next meeting (October 5th).  By that reasoning, the RFP question in its current form should be dead.

Or is it…?
Mr. Malgieri correctly pointed out at the October meeting that, according to the by-laws of the Board, the vote on the RFP was invalid.  According to Article 8, Section 8220, 10-D, a Board member may abstain from a vote only when the question involves the adoption of minutes for a meeting that the member did not attend or where there is a conflict of interest.  Neither Mr. DeGaetano nor Mrs. Ehrenberg claimed a conflict of interest in this matter, and were required to vote.  Therefore, a formal vote on the RFP never took place, and Mr. Katz should have called - and still must call - for a new vote on the motion.

In examining the Open Meetings Law, the CCSD By-Laws of the Board, and Robert’s Rules of Order, this appears to be acceptable process that should occur at the next Board meeting, scheduled for October 25th, to act in accordance with the Rules and restore some order:
  • The minutes of the September 8th meeting must reflect the improper adjournment of the meeting by the Board President.
  • The session of that meeting must be the first order of business on the October 25th meeting.
  • Mr. Malgieri must withdraw his motion on the release/review of legal communication or it must be put to a vote.
  • The Board President must declare the vote on the RFP for the Special Education evaluation to be invalid and call for a re-vote.
  • The re-vote on the RFP for the Special Education evaluation should be tabled in light of “new” information scheduled for presentation by the evaluator to the Board.
  • A vote should be taken to formally adjourn the session of the September 8th meeting.
  • The presentation and/or Q&A session of the evaluator should take place.
  • The Board President, if for no other reason than simple courtesy to the evaluator and all those who have dedicated so much time to this question, should finally call the vote on the RFP.

Mr. Katz’ efforts to maintain an environment of mutual respect and a sense of decorum are to be applauded and supported.  However, this requires more than maintaining a pleasant disposition while ignoring the Rules.  Mr. Katz will more readily achieve these goals by enforcing the By-Laws and the Rules by which the Board must abide.  This is, after all, the duty of the President of the Board.

The Rules ensure that questions are considered in a timely and orderly manner so that decisions can be made efficiently.  The Rules also ensure that the rights of the minority in any question are protected.  The fact that the Board has performed so poorly within the Rules and By-Laws in public meetings raises serious concerns about what’s happening in executive session.  One must wonder how it is that the RFP for a search firm to replace the Superintendent is moving along so quickly in executive session compared to other business conducted in public meetings.  Under the Rules, the supposed 4-3 split among political lines should be irrelevant, and the By-Laws of the Board specify in Article 9, Section 9260, 8, that Board members should “represent the entire community without fear or favor.”  Granted, this may be a little utopian, but it is still a laudable goal.

The Board is required to work within the Rules so that their decisions are timely, their actions are clear to the public and their work serves the best interests of the District.  This is not a suggestion, but a requirement of the By-Laws of the Board.  As Theodore Roosevelt said,” No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor.

Who’s going to argue with him?

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