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SEE YOU IN COURT! - February 2014

CABE Journal

February 2014

Perhaps it is due to his seasonal affective disorder, but Bob Bombast, veteran member of the Nutmeg Board of Education, has been critical of virtually everything that Mr. Superintendent and the Administration have been doing. At the Board meeting last week, Bob’s grumpiness spilled over onto the district administrators as he looked out at the almost-empty Board room.

“Where are the administrators?” Bob asked suddenly with an edge in his voice.

“None of the administrators was scheduled to present to the Board tonight,”
explained Mr. Superintendent. “They will be happy to come when they are needed.”

“They are needed,” Bob snapped back. 

“They are needed at every meeting. They are our key leaders. They need to hear all of the Board’s deliberations.”

“Give me a break,” interjected new Board member Mal Content. “No one needs to hear all of this Board’s deliberations. That could be hazardous to one’s mental health. We should just follow our practice of having them here when needed.”

Bob was not persuaded, and he cleared his throat and said, “I move that administrators are directed to attend all Board meetings except for executive session.”

“Point of order,” said Board member Red Cent. “What administrators are we talking about? There are a lot of administrators . . . ”

“All of them,” responded Bob. “I just want all of them to attend every meeting, beginning to end. Given their salaries, is that too much to ask?”     

With no further debate, the Board passed Bob’s motion unanimously, and Mr. Superintendent dutifully notified all district administrators of this new requirement. It took less than twenty-four hours for Bill Alot, local legal scourge and counsel to the Nutmeg Association of School Administrators, to send an email to Mr. Superintendent:

You are hereby put on notice that Nutmeg Administrators dispute your recent directive to attend all Board meetings. Administrators have not been required in the past to attend Board meetings, and your directive is thus a unilateral change in working conditions. We demand that you immediately rescind your directive and apologize in writing to each affected administrator for the emotional upset you caused by issuing your illegal directive.

Mr. Superintendent forwarded the email to the Board, and soon the Board server was abuzz with Board members comments, ranging from questions about Bill’s assertions to Bob’s outrage that “district leaders would seek to avoid their professional responsibilities through union nonsense.” Through these emails, a consensus emerged: a response to Bill’s claims would be seen as weakness, and thus Mr. Superintendent should simply reiterate that administrators will indeed be expected to attend all Board meetings.

Mr. Superintendent did just that. He sent out a new email to all administrators stating that in response to a question had been raised about his recent email, he wanted to clarify his directive. “Administrators must attend all Board of Education meetings. Period. Any failure to attend will result in serious disciplinary action. Period.”

All was quiet after Mr. Superintendent’s clarification . . . for about two weeks. Then in the mail yesterday morning Mr. Superintendent received notice from the State Board of Labor Relations that the Nutmeg Association of Schools Administrators had filed an unfair labor practice charge. Should the Nutmeg Board of Education be worried?

                                                                            *                 *                 *

“Worried” is a subjective term, and no one is going to jail here. But the Board did violate the rights of the Nutmeg administrators under the Teacher Negotiation Act (TNA). While it may be counterintuitive, with limited exceptions the TNA gives all certified staff below the rank of assistant superintendent the right to unionize, and indeed most such administrators in Connecticut are in bargaining units. The law separates teachers and administrators into two separate bargaining units. The “administrators’ unit” is composed of all certified staff members whose job requires that they possess the intermediate supervisory or administrative certification and who spend at least fifty percent of their time doing such duties (except for assistant superintendents or other administrators who are otherwise directly responsible to the board of education for personnel relations or budget preparation). Other certified staff members are placed in the teachers’ bargaining unit by operation of law.

Under the Teacher Negotiation Act, boards of education are required to negotiate with the exclusive bargaining agent for the respective unit over “salaries, hours and other conditions of employment..." (subject to statutory exceptions such as the school day or the school year). Moreover, as interpreted by the State Board of Labor Relations, the TNA requires that employing boards of education maintain past practices on mandatory subjects of negotiation unless they negotiate a change with the exclusive bargaining representative of the administrators or teachers respectively.

Here, apparently the past practice was that administrators have had to attend Board meetings when they were presenting to the Board and not otherwise. The directive Mr. Superintendent issued at Bob’s insistence, therefore, was a unilateral change in working conditions. The Board should have offered the Nutmeg Association of School Administrators a chance to negotiate before imposing this change.

When unions wish to raise such claims, they file unfair labor practice charges with the State Board of Labor Relations (SBLR). Typically, the first step is for an agent of the SBLR to convene an informal conference between the parties, and such charges are often resolved through discussion and settlement agreements. However, when the parties are unable to resolve the matter informally, the SBLR will hold a formal hearing on the matter, and after the hearing the SBLR will issue a formal decision that is binding on the parties (subject to judicial review through appeal).

The email discussion following receipt of Bill’s email raises an interesting legal issue. Normally board member discussion of an issue over email would be considered an unposted (and thus illegal) meeting of the board. However, the Freedom of Information Act definition of “meeting” excludes “strategy or negotiations with respect to collective bargaining.” Accordingly, the consensus that emerged after the Board members reviewed Bill’s email was a permissible strategy discussion that the Board could hold over email without worrying about the “meeting” requirements of the FOIA.

Finally, Bob’s crankiness did cause one other problem. The issue of administrator attendance at Board meetings was not on the Board’s agenda for that evening. Therefore, the Board’s action that night, without prior posting on the agenda and without any special vote to put it on the agenda that evening (permissible only at regular meetings), did violated the Freedom of Information Act.

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