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SEE YOU IN COURT! - January 2011

January 1, 2011

DEAR READERS: Thirty years ago this month, the column below appeared in the CABE Journal, introducing the Nutmeg Board of Education. As a twenty-nine year-old third-year associate at Shipman & Goodwin, I had no idea that the Nutmeg Board of Education would become such a part of my life. I had not yet met Bob Bombast, Mayor Megillah, Coach Rock, Ms. Chlorophyll, Mal Content, Penny Pincher, Red Cent, or any of the other characters who populate Nutmeg, Connecticut. Over these years, it has been my privilege to describe their mistakes to help you avoid your own, and I hope that these columns have been helpful to you. I thank some of you for causing the problems that inspire these columns, and I thank all of you for your hard work and sacrifice on behalf of the students you serve.


Last night, the Nutmeg Board of Education could not agree on the Chairman’s recommendation to convene in executive session. Three members steadfastly maintained that Board business is public business, and they voted against the resolution “to convene into executive session to discuss privileged matters.” The other five members disagreed, and the Chairman finally convened the Board into executive session in accordance with the majority’s wishes. The room was cleared of all reporters and most observers, leaving only the Board, a group of administrators and two friends of the Chairman.

The Chairman recognized the Director of Special Education, who described the special education needs of a particular student. After some discussion, the Board voted to approve placement of the student in a private institution at Board expense.

Referring to his notes, the Chairman moved on: “The next item of business is a problem we have with the principal of the elementary school. Several parents called me to complain that Mrs. Principal has fallen asleep several times at school assemblies, embarrassing the children. What should we do about this?”

Wait a minute!” interjected the Special Education Director, “I heard from several of my students that Mrs. Principal has been taking home school supplies for her personal use.”

This revelation gave rise to a heated debate, which the Chairman finally concluded by saying: “Well, I think our only choice is to fire Mrs. Principal, but our lawyer says that we have to give her a hearing first. The first step is to notify her that we are considering termination of her contract. Any objections? Hearing none, it appears that we’re in agreement that we should get the show on the road as soon as possible. Mr. Superintendent, please attend to the necessary paperwork.”

The next morning, the headlines screamed, “WITCH HUNT IN NUTMEG, BOARD VIOLATES SUNSHINE ACT!” Is the headline a typical journalistic overreaction, or is the Nutmeg Board of Education in trouble?

*        *        *

The Board has created several problems for itself. To convene into executive session, a board must carefully observe the requirements of the Freedom of Information Act. First, executive sessions are permitted only upon the affirmative vote of two-thirds of the Board members present, and the five members in Nutmeg did not constitute a two-thirds majority. Also, the Board must specify the reason for the executive session. “Privileged matters” is not sufficiently specific. Finally, an executive session is limited only to members of the Board and those persons whose testimony or opinion is pertinent to the matter before the Board. Though the Board would typically seek the opinion of top-level administrators on all issues before it, simply permitting a group of administrators and particularly two friends of the Chairman to attend the executive session is asking for trouble.

The statute sets forth five bases for an executive session, and discussion of special education placement decisions is not expressly included in the list. However, boards routinely deal with special education matters in executive session, and rightly so. Statutory authorization for such executive sessions can be found in the fifth basis, the discussion of any matter that would result in the disclosure of exempt public records, here “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” However, the Nutmeg Board’s vote in executive session is subject to challenge, because the statute provides only for discussion of such matters, not votes.

The next item on the agenda resulted in a wholesale violation of Mrs. Principal’s rights. A person discussed in executive session has the right to request that such discussion be held in open session, and consequently persons discussed must receive prior notification so that they have the meaningful opportunity to make that request. Also, the hearsay evidence offered by the Special Education Director presents two other problems. First, the Special Education Director most likely had no real reason for being present at the executive session and should have been excluded after he made his presentation on the special education placement. Second, the Board should have avoided getting into the merits of a particular termination proceeding before the hearing is held, if requested.

Finally, the Freedom of Information Commission will often view consensus actions as votes. In reaching agreement on consideration of contract termination, the Board may have violated the Act because that “vote” was not recorded and should not have been held in executive session anyway. However, note that in this case no vote was required because the Board may now delegate the notification responsibility to the Superintendent. The Connecticut Supreme Court recently held that a board need not take a formal vote to consider termination of a contract.

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