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SEE YOU IN COURT! - June 2011

June 15, 2011

Authors: Thomas B. Mooney

The budget season had been grueling, as the Nutmeg Board wrestled with the Nutmeg Board of Finance. The Board of Finance, led by its venerable Chairman, Seymour Dollars, toyed with a budget freeze, but the parent community packed the house at the budget hearings and lobbied Board of Finance members all over town.

Given all that pressure, the Board of Finance capitulated, and it agreed to grant the Board of Education a 2% increase in its appropriation for next year. There was just one catch. At the meeting making the appropriation, Seymour Dollars spoke out against the Board of Education, “We know your tricks, how you inflate your estimates and then move the money to your pet projects.” At Seymour’s urging, the Board of Finance approved a zero increase budget, with another 2% increase placed in a separate account subject to town control. “It will be here when you need it,” said Seymour.

The Board of Education wasn’t quite sure what to make of this, and it called Mr. Board Attorney for advice. Mr. Board Attorney reviewed the situation and wrote a comprehensive opinion. He explained that the action by the Town was ineffective because the Town lacks the statutory authority to make a contingent appropriation. However, he did find a deficiency in the Board’s procedures. He noted that the Board had expended its entire appropriation last year without making a single line item transfer, and he cautioned the Board that it should monitor expenditures more closely.

As soon as he got Mr. Board Attorney’s opinion, Mr. Chairperson promptly shot off an email to Seymour Dollars, demanding that the full appropriation, including the 2% placed in the contingency fund, be released to the Board of Education without restriction. In an effort to be convincing, he cut and pasted into his email the portion of Mr. Board Attorney’s opinion that dealt with the contingent appropriation.

Red Cent, a disaffected Board member, got wind of this exchange, and he whispered in Seymour’s ear about the other concern noted in the opinion from Mr. Board Attorney. Seymour promptly made an FOIA request for a copy of Mr. Board Attorney’s entire opinion as well as copies of all flyers that went home with students. Mrs. Superintendent gave Seymour copies of the flyers, which urged parents to “pack the house” and force the hand of the Board of Finance. However, she denied the request for the opinion letter, claiming that the full letter was an attorney-client communication not subject to public disclosure.

When he saw the flyers, Seymour was livid, and he immediately filed a complaint with the State Elections Enforcement Commission, seeking money damages from the principals who permitted the flyers to go home with students. He also filed a complaint with the Freedom of Information Commission, alleging that he was denied access to a public record.

At the next meeting of the Nutmeg Board of Education, Mr. Chairperson called an executive session to “discuss a confidential attorney-client communication” so that he could explain what had happened. Once the Board was in executive session, the Board vowed to fight Seymour’s complaints.

Who is right here, the Board of Finance or the Board of Education?

*        *        *

The Board of Education has some good arguments here, but the first order of business is for the Board better to understand the attorney-client privilege. Boards of education can communicate privately with counsel to receive legal advice. However, that privilege can be waived, and once such information is made public, it is no longer privileged. Significantly, the privilege (and any related decision to waive the privilege) belongs to the Board. Red Cent violated the Board’s rights by talking with Seymour Dollars about Mr. Board Attorney’s opinion. The situation with Mr. Chairperson is a little more complicated, because he was acting on behalf of the Board of Education, and his quoting from Mr. Board Attorney’s opinion may have been authorized. However, a formal vote or action by the Superintendent (as chief executive officer) are the only ways to be certain that waiver of the attorney-client privilege is authorized.

Board members must know that there are two significant implications of waiving the attorney-client privilege. First, the privilege cannot be partially waived. A client cannot selectively disclose attorney-client communication. Rather, once there is waiver, the communication in its totality is subject to public disclosure. Here, by disclosing part of Mr. Board Attorney’s opinion, Mr. Chairman waived the privilege completely, giving Seymour the right to the entire opinion under his FOIA request.

Second, once the privilege is waived, it is no longer confidential, and accordingly a board of education cannot convene into executive session to discuss it. The executive session privilege extends to discussion that would result in the release of information contained in confidential documents, and the document is of course no longer confidential. Thus, the executive session here was improper.

Seymour was also entitled to a copy of the flyers, which he was given. However, it is not clear that he would have a valid State Elections Enforcement Commission claim. The question is whether sending information home with children was an “expenditure” to advocate a referendum result. If so, a violation occurred. However, if the Board of Finance made the appropriation on its own without a referendum, sending information home with students, posting information on the website, or otherwise incurring expense in support of the board of education budget is not a violation of the prohibition against spending public funds to affect a referendum result.

In these difficult times, municipalities are considering their options regarding funding school operations. The statute is clear as to the right of boards of education to operate independently of town control. Once an appropriation is made, the board of education has the right to expend the funds in its discretion and to make transfers as it sees fit. However, the statute contemplates that transfers will be made as needed, as a way to assure monitoring of the budget. If the Nutmeg Board of Education made no transfers, it may have inappropriately let some accounts go into deficit during the year.

Finally, it is also clear that towns may not make appropriations subject to conditions, such as receipt of state funding or limiting expenditures to specified purposes. However, given the budget uncertainties, some municipal concerns are legitimate. Board members are well-advised to work cooperatively with town officials in these difficult times as long as they can do so without permitting town intrusion into board of education responsibilities.

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