Submission Date:
Question:
Our board meetings are now 100% remote, and one trustee has failed to attend every session since the start of the pandemic. How can our board address that, if we know the move to virtual meetings (unfamiliarity with Zoom, bad internet, etc.) is the reason for the absence? Is removal an option?
Answer:
Earlier this week I was having a conversation with Brian, one of my paralegals, about the challenges we—our office and our clients—are facing due to the pandemic. The conversation ranged from the personal (Brian is a musician whose band hasn't been able to play; my father-in-law is in the hospital and we can't go see him), to the professional (how to handle a contract breached because people can’t gather to do the work). We concluded, in a very non-scientific way, that everything—whether it used to be easy, or was only a little bit difficult—is now "at least 30% harder" than before.[1]
On the flip side, later that day, I spoke via Zoom with a friend about how the increased reliance on Zoom, FB Live, and other virtual fora has done wonders for democracy. "People are going to meetings they could never get to before," said my friend. "People who would never have had time to get to City Hall, or would have faced actual physical barriers to getting in a building,[2] are now able to attend." And I optimistically thought: Cool...one thing that isn't 30% harder.
But these current times are not kind to optimists, and this question shows that, for some, even the Zoom-ification of democracy might make life at least 30% harder.
And with that harsh reality established, let's take a look at the legal considerations of this question.
I. Meetings during COVID
As "Ask the Lawyer" has addressed a few times[3] since the onset of NY's response to the pandemic,[4] chartered libraries are obligated to conduct their board meetings in compliance with the "Open Meetings Law (the “OML”). When New York went into social-distancing mode, the requirements of that law were modified by Executive Order to allow people to attend remotely, or through a blend of in-person and remote solutions.[5]
The New York Committee on Open Government (the "COOG") addressed some of the practical considerations of these modifications in guidance issued on August 20, 2020 [NOTE: This link was confirmed as no longer active and removed on 02/25/2022 as part of the routine review of "Ask the Lawyer" materials.]. In that opinion, the COOG stated that if a body subject to the OML resumed meeting in person while the executive orders allowing the modifications were effective, a remote attendance alternative must be provided.[6] As of this writing, modification is good through February 26, 2021.
II. Attendance as a Trustee During COVID
The Executive Orders and COOG guidance clearly require enabling attendance through remote measures. What the executive orders and COOG[7] guidance are silent on is the scenario posed by the member: if a library board and community have transitioned to meeting 100% virtually, and one trustee, due to the technology, isn't able to attend, is the board able to address that under the law?[8]
I have found no guidance precisely on point, but below is my legal analysis, and what I hope will be helpful guidance.
III. Analysis
Library trustee service is governed by the laws of New York and a library's enabling legislation, charter, bylaws, and policies (in that order). Aside from customized provisions in a charter, bylaws or policy, the law has two means of addressing serial trustee absence:
Means #1: "Unexcused Absence"
Per Section 226(4) of the Education Law,[9] trustees who are absent for three consecutive meetings without a "satisfactory excuse" for missing the meeting are "deemed to have resigned." That is why, when a trustee lets a board know that they are unable to attend a meeting (virtual or otherwise), and they don’t show up, they are noted on the minutes as "excused," since to do otherwise could put the trustee on a path of resignation-by-law.[10]
Many NY library bylaws have this language in them, but it is not required...since it's in the law. But what isn't in the law is what a board can regard as a "satisfactory" excuse. Is the excuse of a trustee who can't attend remotely, due entirely to technology, "acceptable"? Only a board can say. In a very rural community, it might be. In a highly wired urban area with free wi-fi, where a trustee could perhaps even borrow some library technology to attend the meeting, it might not. So long as the reason is not discriminatory,[11] and not contrary to the bylaws or being unfairly applied, a board has some discretion in what type of reason they are "satisfied" by.
But I can say this: if the absences aren't noted as "unexcused" on the board minutes, a board should not contemplate this as a basis for implied resignation, since the law is clear that this must be based on absence that is unexcused.
Means #2: "Neglect of Duty"
The other statutory basis for removal of a trustee is found in Section 226 (8) of the Education Law: "Removals and Suspensions,” which states that a board may:
“Remove or suspend from office by a vote of a majority of the entire board any trustee, officer or employee engaged under special contract, on examination and due proof of the truth of a written complaint by any trustee, of misconduct, incapacity or neglect of duty; provided, that at least one week’s previous notice of the proposed action shall have been given to the accused and to each trustee."
As you can see, this section (a provision often replicated in library bylaws) creates a more intricate process than Section 226(4): it requires a written complaint, advance notice, and a majority vote of trustees to confirm a removal.
To use this provision to address nothing more than repeated absence due to technical issues is probably overkill, unless the board finds that the mounting excuses—while perhaps initially acceptable—are causing real harm to the library or the operations of the board. Before resorting to this step, it is always good for a board president or other leader to have a conversation with a board member and ask if they would like to offer their resignation (for some, this request may come as a relief).[12]
That said, a "neglect of duty" removal doesn't have to be hostile. It can simply state that a trustee has failed to attend X number of meetings, has been unable to fulfill their duty as a trustee, and that to ensure the board has the benefit of a fully participating body, the board must consider removal. Give proper notice of the “complaint,” make sure the trustee has a chance to be heard, and vote.
IV. Guidance
So: Is removal an option?
Yes, removal is an option, but as can be seen, when considering such removal, a board should pay close attention to the documentation that it is basing its decision upon.
I am very glad the member who submitted this question is being so thoughtful about this. It is clear from the law, the pandemic-related Executive Orders, and the COOG guidance, that it is the public policy of the State of New York to encourage attendance and access to library trustee meetings, even during difficult times.
While trustees have a different set of rights and obligations than the general public, an effort to orchestrate meetings to be free of pandemic-created impediments to trustee participation is clearly within the spirit, if not the letter of the law. To that end, if a library is open and if it has a Safety Plan that could allow a capacity-limited physical component of a virtual board meeting (perhaps set up in the room where the trustees used to meet, if possible under the Safety Plan), it is worth considering allowing trustees to attend in that manner—even if the rest of the trustees appear virtually.
But to be clear: that is not what the law requires. And if everything feels at least 30% harder these days, every library needs every trustee to be giving 100%. So, if steps need to be taken to ensure a board has its full capacity of engaged trustees, just double-check your bylaws and documentation, and do what's best for the library.
Thanks for a difficult but very important question.
[1] I have heard people used "B.P." as in, "Before Pandemic." "Pre-COVID" and "pre-pandemic" are also used. I have floated "ante-Corona," because it sounds so grandiose, but I can't get it to stick.
[2] My friend is an architect, so they tend to see the world in design terms.
[3] In the answers from March 18, 2020, November 16, 2020, and December 14, 2020.
[4] "P-Day?"
[5] The latest extension of this modification is valid until February 26, 2021 per Executive Order 202.92.
[6] What the Executive Director wrote was: "In my opinion, if a public body can possibly anticipate that any persons who may wish to attend a meeting governed by the provisions of the Open Meetings Law cannot be safely physically accommodated in the proposed meeting location ... that public body is required to simulcast to the public, by either video or audio means, the proceedings of the meeting as they are occurring so that all members of the public who wish to “attend” may do so."
[7] Full disclosure: this acronym is a constant test of my maturity level.
[8] For purposes of this scenario, I am accepting the premise that not even attendance via LAN line is possible; something that is certainly feasible in our cord-cutting, cell-reliant society. Further, I have never seen bylaws that require a trustee to own a computer, or even a phone (you usually just have to be 18 and live in the area of service!).
[9] "If any trustee shall fail to attend three consecutive meetings without excuse accepted as satisfactory by the trustees, he shall be deemed to have resigned, and the vacancy shall be filled." Please pardon the implication by pronoun "he" that only a male trustee can be subject to this law; I don't write the law, I just research, construe, and quote it.
[10] Short note for all you minute-takers out there: this is why noting those “excused” and “unexcused” absences is so important.
[11] For instance, if board meetings are always held on Friday night, and the board doesn't excuse the absence of someone who keeps the Jewish sabbath.
[12] I appreciate that if the trustee is truly inaccessible by computer/phone, this might be cumbersome.
