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SEE YOU IN COURT! - November 2010

November 1, 2010

The members of the Nutmeg Board of Education were feeling the pressure. After hours and hours of public discussion, they were no closer than before to reaching agreement on the school calendar for next year. When they discussed starting school before Labor Day, they were hissed by the parents who didn’t want the summer vacation cut short. When they discussed a later start to the school year, they were booed by the parents who didn’t want to the start of summer vacation to be unduly delayed. After going around and around, the Board finally took action – it created a committee to meet and discuss a new school calendar outside the public eye.

Veteran Board member Bob Bombast chaired the committee, and he called the first meeting to order in his basement rec room. Crack reporter Nancy Newshound saw the posting and showed up, but Bob’s wife met her at the front door and told her that the committee meeting was in executive session, so she should just go home.

With the committee sitting around the ping pong table, Bob unveiled his plan for the 2011-2012 calendar. Never one for half measures, Bob proposed that the new school year will start on September 19. “This revolutionary approach will give parents ample time to schedule a couple weeks of family vacation during off-peak days after Labor Day.” The committee members were initially uncertain, but after some discussion they agreed with Bob’s proposed new school calendar. Bob reminded them that they could not vote in executive session, and they agreed by consensus to recommend the new school calendar.

With the committee’s approval in hand, Bob brought his proposed school calendar to the Board of Education. Mal Content, President of the Nutmeg Union of Teachers, addressed the Board during public comment at the beginning of the meeting. “The NUTS leadership demands that the Board reject Bob’s calendar proposal. If you persist with this folly, we will be filing an unfair labor practice charge.”

“Thank you, Mal,” Bob responded insincerely. “But the Board will not be deterred by your empty threats. Fellow Board members, NUTS has no say here, and I urge adoption of this innovative approach to the school calendar.”

The Board members, however, had other questions about the calendar. “What about graduation?” asked Penny Pincher. “How do we schedule that?”

“No problem,” responded Bob. “The law gives us the right to schedule a firm graduation date now. We will not have to revisit that decision.”

“But what about snow days?” asked Red Cent. “As I read this calendar, if we have more than three snow days, students will be finishing up in early July.”

“I have that covered as well,” Bob answered. “With global warming, I don’t anticipate more than three snow days in any event. However, we can either have the kids finish up in July or maybe get a waiver if need be. I mean what is the big deal about 180 days?”

With no further discussion, the Board approved the proposed new calendar unanimously. Might the Board be haunted by its decision here?

*        *        *

Boards of education have extensive power to set the school calendar. However, this particular calendar puts the Board at risk because the duty to provide 180 days of school sessions is virtually absolute. Global warming notwithstanding, the Nutmeg Public Schools may well have more than three snow days. If that were to occur, the Board would be in an impossible position. Boards of education must provide 180 days of instruction during the school year. June 30 is the last possible day for a school session, because the statutes define the “school year” as the period July 1 through June 30. School days in July would not satisfy the statutory requirement for 180 days.

Bob is also off base in thinking that the district might possibly get a waiver if it runs out of days before June 30. In 2001 the Commissioner of Education issued a Circular Letter stating that he did not expect the State Board of Education to grant any waivers of the 180 day requirement. Certainly, there would be little sympathy in the situation here, as the Board adopted a calendar that will make it difficult or impossible to complete the required 180 days.

The statutes also address graduation, and Bob missed the mark again. Conn. Gen. Stat. Section 10-16l gives boards of education two options as to a graduation date. First, boards of education can set a firm graduation date as long as it is no earlier than the 185th day noted in the school calendar (providing for at least five snow days). Thus, the school calendar proposed by Bob would not permit the Board to fix the graduation date at the beginning of the year. Second, after April 1 of any year, a board of education can fix the graduation date as long as the schedule would provide for at least 180 school days prior to such graduation. Interestingly, the Commissioner of Education has ruled that seniors must be invited back to complete the school year even after graduation, should subsequent events extend the school year.

We also note that the teachers’ union is objecting to the school calendar as proposed, and in some towns teacher unions ask to negotiate over the calendar. However, the union has no direct say, because the length and scheduling of the student school year is a permissive subject of negotiation under the Teacher Negotiation Act, i.e. a subject over which the Board can but need not negotiate. Of course, boards of education should be prepared to listen to all constituencies concerning the scheduling of the school year, including the teachers’ union. However, unless the Board here had previously negotiated over the calendar and reached an agreement on the subject, the Board has the unilateral right to set the calendar as it sees fit.

Finally, Bob’s committee violated the Freedom of Information Act in various ways. Committees created by boards of education are public agencies, subject to all FOIA requirements. The meeting in Bob’s rec room was appropriately posted, but it should have been open to the public. Moreover, since the discussion of the school calendar was not privileged to executive session, Nancy Newshound and other members of the public had the right to hear the committee’s discussion. Finally, the committee erred here by approving Bob’s plan by consensus. While committees often work informally, as is appropriate, here the committee took formal action. The votes of each member of a public agency must be recorded in the minutes of the meeting, and the consensus decision not recorded as a vote violated this requirement.

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