Lame Ducks and Members-Elect: What Can They Do After the Election and Before Swearing In?
The elections are over, but there’s still some time before new members will be sworn in. Questions arise about what the roles and rights are of both the outgoing “lame duck” members, and the members-elect. Is it legal, and if so, it is appropriate, for lame duck members to make significant decisions, such as hiring or firing the key employees, or approving a major development, contract, or ordinance during their remaining days in office? Does this usurp the powers of the lawfully elected incoming board? On the other hand, what if the current board members want to include the members-elect in key decisions? May they legally do so?
The basic answer is that until new members are sworn in and officially take office, the legal powers and status of the existing board and the members-elect are exactly as they were before the election. So the members-elect are just like any other members of the public at large, and the elected board has and may exercise all of the powers they had before the election.
The question of what the elected board members should do in their remaining days in office is primarily a political and ethical one. Board members who have lost an election over clearly identified issues may engender the wrath of the public if they attempt to use their remaining time in office to implement policies or take actions voters seem to oppose. But there’s nothing about the timing or circumstances of this period of time that changes their power to act as they see fit.
In only one case that I’m aware of, state law limits the usual discretion of a board in a decision about its contract with a key employee after new members have been elected. G.S. 115C-271 (c) requires a local school board to await the swearing in of newly elected members before extending or renewing the current superintendent’s contract.
Let’s imagine, though, that the current board has spent the last year evaluating the police chief and has concluded that the chief should be terminated. Should the board complete its work, or defer the decision to the new board. It’s easy to see valid arguments on both sides. What if the board wants to try a middle ground: why not invite the newly elected board members into the conversation and share the information so they’ll understand the reasons for the decision? A good idea, perhaps, but probably not a legal option. The information supporting the decision to terminate the employee is most likely confidential. The newly elected board members are not entitled to see it any more than any other member of the public. The same limitation might occur if the board is in negotiations for a major economic development project. The board would be prohibited from disclosing any trade secrets of the prospect company, and may have agreed to keep other information confidential as well.
What if a member-elect isn’t offered information about current issues, policies, or pending matters, but demands it from the current officers and staff? Again, the member-elect’s right to information is just like that of any other member of the public before until he or she officially takes office. So public information must be shared, but access to confidential informational may be denied.
On the other hand, as long as no confidential information is involved, there is nothing to prevent the current board members and staff from orienting newly elected members, including sharing information about current issues, board procedures, and other practices within the unit. Note that in determining whether a majority of the public body is present at meetings held for this purpose (in case notice is required under the open meeting law) the members-elect are not yet members of the public body so they don’t count.
A more complicated question is whether, after members-elect take office, the new board can undo things the old board has done. The answer to this question depends upon the nature of the action. It’s all about the issue often described as “binding future boards.” More on that in my next post.