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SEE YOU IN COURT! - June 2009

May 20, 2009

Authors: Thomas B. Mooney

The members of the Nutmeg Board of Education felt like they had been beaten with a pipe. After starting with a proposed three percent increase in their budget, they saw it chopped by the Board of Finance and then defeated at referendum. On the second round, though, the budget was approved narrowly, leaving the Nutmeg Board of Education with exactly the same amount for next year it had received for this year.

Veteran Board member Bob Bombast invited the other Board members over to dinner to brainstorm over how to get through 2009-2010. The Board members came up with a number of ideas, and at the next Board meeting, Bob made the following motion: (1) students will have to pay a supply fee for art class, (2) teachers will have to buy a parking permit to use the faculty lot, and (3) space on the outfield wall around the baseball field will be sold to local businesses for advertising. The Board members who had attended dinner at Bob’s sat quietly, but other board members had many questions.

“Can we do that?” Penny Pincher asked. “The art thing isn’t worth that much, but I bet we can make pretty good money with the parking permits.”

“I think that the real money-maker here is the advertising,” responded Bob expansively. “In fact, why we should stop with the ball field? We can have sponsors for each of our classes. It shouldn’t take too long for teachers to mention a sponsor at the beginning of each class. You know, ‘This Honors Biology Class is brought to you by Little Caesar’s . . . .’”

Well, that last idea was a little much, even for Nutmeg. Bob smiled sheepishly as the other Board member laughed. “OK,” Bob said, “Forget I said that. But I am serious about my motion.” The Board members talked it over, and they unanimously approved the Bombast Budget Plan. Soon, all of Nutmeg was abuzz with concern over implementation. Teachers grumbled, but many of them paid their new parking fees. Parents grumbled, but they paid the supplies fees.

Bob was right about the advertising. It was the biggest revenue source. Soon, the outfield walls were almost completely covered with advertisements from local vendors, sold for a pretty penny. But no scheme is perfect, and Mrs. Superintendent had to make some tough choices. With reservations, she sold advertising space to Sam’s Tanning Salon and Tony’s Package Store, but she rejected a request from the First Baptist Church.

Pastor Paul was not happy. He mobilized the flock to protest Mrs. Superintendent’s decision. At the next meeting of the Nutmeg Board of Education, the room was packed with parishioners. One by one, they railed against the fact that the Nutmeg outfield wall promoted liquor but not God. They were so relentless that even Mrs. Superintendent was having second thoughts about her decision.

Will Nutmeg have any legal problems with its fund-raising strategy?

* * *

Let us count the ways. To begin, Bob’s little strategy session likely violated the Freedom of Information Act. To be sure, board members can invite other board member over to dinner, because a chance or social gathering is not a “meeting” under the FOIA. However, if a quorum is present and discusses matters over which the Board has jurisdiction, it is conducting a meeting, which should be posted and to which members of the public should have access.

Bob’s fund-raising scheme presents problems as well. In these difficult times, change is imperative. However, if those changes affect working conditions for a union group, they may not be implemented without prior negotiations. Requiring parking permits would certainly be such a change, and the Board committed an unfair labor practice when it unilaterally imposed that new requirement.

Given the challenges that boards of education confront, it is important to recognize the bargaining duty, but not be afraid of it. Unions may protest changes, claiming “past practice.” If such is the case, boards of education may decide that the matter is important and bargain over the proposed change. Such mid-term negotiations are regulated by the Teacher Negotiation Act or MERA, and may proceed to mediation and even binding arbitration. Significantly, the arbitrators are guided by the same statutory criteria as apply to regular negotiation, including the priority considerations of the public interest and financial capability. When we face such enormous challenges, it is reasonable to expect public employees to share in the sacrifice, and such negotiations may be worth the trouble. Don’t press your luck, however, with parking permits.

Fees for students also raise legal issues. Connecticut law provides:

Each local and regional board of education shall purchase such books, either as regular texts, as supplementary books or as library books, and such supplies, material and equipment, as it deems necessary to meet the needs of instruction in its schools. In day and evening schools of elementary and secondary grades, all books and equipment, including, but not limited to, assistive devices, shall be loaned and materials and supplies furnished to all pupils free of charge, subject to such rules and regulations as to their care and use as the board of education prescribes.

Conn. Gen. Stat. § 10-228. As you can read, this statute does not permit fees for books and materials that are “necessary to meet the needs of instruction.” However, fees may be charged for supplementary activities, such as extracurricular sports.

Finally, selling advertising at the ball field may work, but Mrs. Superintendent made some bad choices. School boards have jurisdiction over property used for school purposes, and while there is no clear guidance on this point, it appears that they may choose to permit advertising on such property, subject to some limits. First, as creatures of statute, boards of education have only the powers given them by the General Assembly. If the advertising is to support specific activities, such as high school athletics, it appears that the Board could collect advertising money for that purpose and deposit it into the appropriate school activity fund. It is not clear, however, whether a board of education could sell advertising more generally. Second, the Board, acting through the Superintendent, would have the right to make reasonable decisions concerning its “sponsors.” Given the prohibition against underage drinking, Mrs. Superintendent should have passed on advertisements for Tony’s Package Store. By contrast, discriminating against religious speech may not have been appropriate. While there is one case supporting a school district’s decision not to post the Ten Commandments on the outfield fall as requested by a sponsor, speech of a religious nature is generally protected by the First Amendment, and Mrs. Superintendent may have acted unconstitutionally when she rejected the request from First Baptist.

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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