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SEE YOU IN COURT! - July/August 2013

CABE Journal

July/August 2013

Penny Pincher was elected to the Nutmeg Board of Education last fall. Before serving on the Board of Education, Penny was a PTO member and eventually President of the PTO at the Median Middle School. When she started as PTO President, she set up a standing appointment on Friday afternoons with Mr. Principal to review school operations and to offer her two cents. After her election to the Board, she resigned as PTO President and her successor was elected. However, she continued to attend the standing meetings at Median Middle School, now with Mr. Principal and her successor. 

Penny has also been an involved parent, and she has always met regularly with the teachers for her two children, both still in middle school. The meetings usually go well, because Penny’s children are good students and well-behaved. But Penny’s conversations with the teachers often stray into operational issues, because Penny likes to solicit the teachers’ input on how the administration is doing.

Penny was surprised when Mr. Chairperson called her up last week and informed her that he had received an anonymous complaint about her intruding into school affairs. The letter, which was sent to all the Board members, accused her of undermining the administration, supervising teachers and generally being a nuisance.

“You are going to ignore it, right?” Penny asked. “After all, it is just an anonymous letter and shouldn’t be given any consideration.”

“Well . . . ,” Mr. Chairperson responded, “it isn’t that simple. It is an election year, and your fellow Board member Mal Content has demanded that we investigate your conduct. Think about how you will respond in executive session.”

Penny was shocked by Mr. Chairperson’s decision, and she steeled herself for a tough meeting. But it was tougher than she had imagined. When the Board convened into executive session to discuss Penny’s performance as a Board member, Mal attacked. “You have been trying to run Median Middle School for years. Your interference has got to stop! You are giving the Board a black eye.”

“I have no idea what you are talking about,” Penny responded. “I have every right to meet with teachers to discuss my children, and if teachers volunteer information, it is not my place to shut them up. I do my best to stay out of things.”

But Mal was undeterred. “I heard that you have been calling the school and sending emails to teachers and others, telling them what ‘should’ happen at the school. And your votes on PTO matters are clearly a conflict of interest. I want to see your cellphone records and your personal emails. In fact, consider that a request under the Freedom of Information Act. We need to get to the bottom of this!”

Penny was in a daze at Mal’s unrelenting attacks, and she was shocked by the silence of the other Board members. She asked Mr. Chairperson to end the executive session, but he told her that it was too late for her to object. Mal continued his diatribe against her for another fifteen minutes before the meeting ended.

Does Penny have any recourse here? 
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While Penny may have exercised poor judgment here, it is clear her rights were violated. Under the Freedom of Information Act, the Board may convene into executive session to discuss the performance of a Board member, here Penny, but there is an important caveat. While a public agency can generally discuss the “appointment, employment, performance, evaluation, health or dismissal of a public officer or employee” in executive session, that individual may require that the discussion be held in open session. As soon as Penny objected, the Board should have ended the session.

The other FOIA issue here is more complicated. Mal made a request to see Penny’s cellphone records and personal emails. Under the FOIA, any person has the right to inspect public records unless there is an exemption from disclosure. The question here is whether and to what extent Penny’s cellphone records or personal emails are public records. The FOIA defines “public records or files” as “any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency . . . whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.” Clearly, this definition is broad, but an essential element of the definition is that the recorded information must relate “to the conduct of the public’s business.” If Penny’s cellphone bill shows calls to school people, that part of the cellphone bill may be a public record. Similarly, Penny’s emails that deal with Median Middle School or the Nutmeg Public Schools more generally will likely be public records. Otherwise, they are not, and neither Mal nor anyone else would have the right to see that information.

There is a nuance as regards communications with Penny’s teachers. Upon election, a Board member doesn’t lose his or her rights as a parent. Board member emails to teachers and others about his or her children do not relate to the “conduct of the public’s business” and need not be disclosed. Moreover, such records are exempt from disclosure as personally-identifiable student records under FERPA.

Penny had every right to meet with her children’s teachers, but there was a practical problem in her talking with teachers about operational issues. Penny should have kept communications with the teachers focused on her children, and she exercised poor judgment in letting the conversation stray. It is unlikely that the teachers of Penny’s children will be able to separate Penny as parent from Penny as Board member. Therefore it fell to Penny to maintain that separation, which she failed to do.

By contrast, there is no merit to Mal’s claim that Penny had a conflict of interest. Conflicts of interest typically arise when a board member or school official has a personal financial interest in a matter that could impair or give the appearance of impairing the person’s ability to decide a matter impartially on behalf of the public. A personal interest, however, whether it be the PTO, youth athletics or whatever, is not a conflict of interest and Penny has every right to weigh in and vote on such matters.

Finally, Penny’s problems began with an anonymous letter, and she thought the Board should ignore it. Penny may well have been right about that. However, while it may be surprising and may not be fair, even anonymous letters are public records when they relate to the public’s business.

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