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SEE YOU IN COURT! - December 2011

December 2011

Authors: Thomas B. Mooney

Winter Storm Alfred hit the Nutmeg Public Schools as hard as it hit any district in Connecticut.  By the time power was restored to most of the homes, seven days of school had been cancelled.  Just two months before, Hurricane Irene had caused three missed days of school.  The Nutmeg Board of Education found itself in a big hole at the beginning of the winter season.  Mr. Superintendent thought it best to send an email to his Board members, warning them of the challenge ahead.

Veteran Board member Bob Bombast promptly responded by email to all that he had been thinking about this problem.  He explained that he had already bought tickets to Disneyworld for February vacation, and while he would never advocate out of self-interest, he was concerned that other families would be the in same boat.  Accordingly, he suggested that the Board make up the time in different ways:  “By adding ten minutes to each school day, we can make up thirty hours of instruction, or about five days.  We can also hold school on Veteran’s Day, Martin Luther King Day and Presidents’ Day, and then we can just tack two days on to the end of the school year,” he argued.  “And if we really get in a bind, the State Board of Education will certainly grant a waiver, given the year we have all had.”  

Soon, the email was buzzing between and among the Board members.  Bob’s ideas were generally acceptable, although Mal Content won the day with his suggestion that the Martin Luther King holiday be preserved, requiring that the Board add another day at the end of the year.  By the time the Board held its meeting, everything was squared away, and a discussion that could have been contentious was short and sweet.  By a unanimous vote, the Board adopted the calendar as revised.

 Bruno, President of the Nutmeg Union of Teachers, couldn’t believe his ears as the Board took its vote.  “You can’t just add time to the school day!!  You guys are crazy!!” he thundered.  “I demand that you rescind your vote.”

“Sorry, Bruno,” Bob shouted back.  “This is a Board decision, and for once you don’t have anything to say about it.”

“We will see,” Bruno retorted.  “You haven’t heard the last from me.”

*        *        *

The Nutmeg Board of Education confronts a difficult situation, as do many districts throughout the state.  However, its plans are flawed.

The basic challenge is how to comply with the statutory requirement that each school district provide 180 school sessions with at least 900 hours of actual instruction (450 hours for kindergarten) each school year.  Connecticut General Statutes Section 10-15 expressly requires that all school districts provide such instruction.  Moreover, it must be provided before July 1, which by statute is the start of the next school year. 

There are limitations on when such sessions can be made up.  Section 10-15 provides that “when public school sessions are cancelled for reasons of inclement weather or otherwise, the rescheduled sessions shall not be held on Saturday or Sunday.”  In addition, Conn. Gen. Stat. Section 1-4 regulates when and how school may be held on a legal holiday.  Specifically, it generally provides that school districts can hold school on a legal holiday as long as it holds “a suitable nonsectarian educational program in observance of such holiday.”  However, when a holiday occurs during December and January, school may not be held that day.

Bob Bombast argued that the Nutmeg Board of Education could keep February vacation by adding time to the school day.  Additional time could be helpful in meeting the 900 hour requirement (although no more than seven hours in any single day can count).  However, the 180 day requirement would not be excused by adding time, and Nutmeg will have to have 180 school sessions unless the requirement is waived.

As to waiver, Bob claimed that the Board could simply request a waiver from the State Board of Education if subsequent snow days cause problems in scheduling the required school sessions.  The Board cannot count on that.  To be sure, upon the request of a school district, Section 10-15 authorizes the State Board of Education to “authorize the shortening of any school year for a school district, a school or a portion of a school on account of an unavoidable emergency.”  That statute also provides that the State Board of Education can approve a plan to “implement alternative scheduling of school sessions,” presumably including the scheduling of fewer, longer sessions.  However, the Commissioner of Education has repeatedly warned school districts that the statutory requirement of 180 school sessions is very important.  In 2001, Commissioner Sergi warned that “the State Board of Education has not waived the 180 day requirement in the recent past and [he did] not anticipate that they will want to consider it this year.”  Last year, Commissioner Coleman cautioned that school districts should be able to make up the days when the cancellations occur early in the year.  Just last month, Commissioner Pryor warned, “Districts are expected, as in years past, to make all efforts at the local level to meet the mandated minimum number of school days by June 30.”  Given that most of the school year is still available, districts must make plans now to meet the statutory requirements.

The statutes also address the scheduling of graduation.  Under Conn. Gen. Stat. Section 10-16l, after April 1 school boards may schedule a firm graduation date, and if cancellations occur thereafter, graduation may go forward as scheduled (although seniors are supposed to come back to participate in the full 180 school sessions).  The statute also permits boards to set a firm graduation date “no earlier than the one hundred eighty-fifth day noted in the school calendar originally adopted by the board for that school year.”  However, last year Commissioner Coleman interpreted the statute to mean that 185 actual school days must be scheduled (which few, if any, school districts do).  Until the Department changes its position, this option is meaningless.      

Bruno’s protestations notwithstanding, boards of education are not required to negotiate over the length and scheduling of the student school year.  However, while the Board still has the right to change the calendar without negotiations, the union may request negotiations over the impact of any changes.  If such negotiations are held, they are subject to the same impasse resolution procedures as any other negotiation.
Finally, the Nutmeg Board members again succumbed to the temptation of using email inappropriately.  The extensive email communications here could well be described as “discussion” during a “meeting” that was held illegally without proper posting or public access.  Bob should have presented his ideas at a posted meeting.

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