On Aug. 20, in what may be the first board member removal case related to the COVID-19 pandemic, an administrative law judge determined that a local board of education could not remove one of its own members for missing three consecutive meetings where the member’s schedule temporarily changed because of the pandemic and he could not attend the scheduled meetings.
In the case, the board alleged that the member missed four consecutive meetings on March 12, April 9, April 30, and May 14, 2020. The statute, N.J.S.A. 18A:12-3 says in part, “any member who fails to attend three consecutive meetings of the board without good cause may be removed by it. ”
On July 9, the board voted 6-3 to remove the board member for the missed meetings. On Aug. 3, the board member filed the instant action for emergent relief seeking to stop his removal from the board.In examining the board member’s claim, the judge determined that irreparable harm would result to the board member because loss of board membership is not something that can be redressed through monetary damages. Additionally, emergent relief was needed because if the board member was removed but later the removal was found to have been improper, it could have the potential to interfere with the school board election as the subsequent vacancy would be on the ballot for a seat that should have never been put up for election. Additionally, once the election takes place, it would have the potential to harm the court’s ability to even consider restoring the board member to his seat.
Technical Problems with Zoom, Essential Worker’s Schedule were Obstacles For one of the meetings that the board member allegedly missed, the board member was in attendance for at least 13 minutes. The meeting was held virtually as a result of the pandemic and the board member, an officer with the state corrections department, participated in the meeting during a break. However, due to technical difficulties, the member could only participate for 13 minutes. While the board argued that participation for such a short amount of time constituted an absence, the judge could not find anything in policy or law permitting the board to do that. Further, the judge determined that the board’s actions did not meet the “good cause” requirement. Good cause “clearly means, in the particular circumstances obtaining, without a ‘reasonable excuse’ as that term is generally understood as a matter of plain common sense.” Here “circumstances here hardly warrant the stigma and opprobrium of a removal’ for failure to attend a meeting where the failure was due to technical difficulties experienced at the Board’s first Zoom meeting during a global pandemic.” The judge also noted that the board member is an essential corrections employee who had to work to cover other employees who became ill with COVID-19 and has since adjusted his work schedule to be able to attend the meetings. The judge also reasoned that, given the particular circumstances of the case where the absences were due to COVID-19 affecting his work schedule, and technical difficulties in being able to stay connected to one of the meetings, an issue that affected at least three other members, the judge concluded that the board member’s arguments had merit. Additionally, the judge observed that the board member has more than two years left on his term and his removal “undermines the will of the public who elected him and unduly smears his reputation.”
Thus, the judge concluded that the board’s decision to remove the member under the circumstances presented was arbitrary and capricious. The judge reinstated the individual to the board.