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SEE YOU IN COURT - June 2013

CABE Journal

June 2013

Given heightened security concerns, the Nutmeg Board of Education included $2,000,000 for “increased security” in the budget it submitted to the Town for next year. However, Seymour Dollars, the venerable Chairperson of the Nutmeg Board of Finance, was not happy. He sent the Board a snotty letter saying that the Board of Finance would not consider the request until the Board gives him more details.

Bob Bombast was upset with the short shrift Seymour gave to the Board’s budget request for its important security measures. If Seymour wants details, he thought, he will get details. Bob scheduled an impromptu meeting of the Finance Committee in his basement. When the members arrived, Bob unveiled his plan.
 
“Three hundred security cameras, with two full-time video monitors, and two security guards in each building. That should be enough detail for Seymour!” Bob declared the meeting over, and for the next hour the Board members hung out, drinking Bob’s beer and eating pizza as they gossiped about the other Board members.

At the next meeting of the Board of Education, Bob gave the report of the Finance Committee. “Seymour wants details about our security plans, and he will get them...” Before Bob could continue, a Board member interrupted him to ask whether the Board should be discussing its security plan in open session. Bob smiled. “No secrets here. We will have security cameras EVERYWHERE! We can’t be too safe. We will have cameras outside the building. We will have cameras inside the building. We will have cameras in the hallways. We will have cameras in the classrooms. Whatever happens in the Nutmeg Public Schools will happen under our watchful eyes.”

“That sounds great,” Mr. Chairperson said, thanking Bob for his report. “We will be able to keep tabs on everyone this way. And as to the funding, Mr. Superintendent has some new information to share with the Board.”

“Thank you, Mr. Chairperson,” Mr. Superintendent began. “As the Board will recall, you ordered me to impose a spending freeze last January, and it has worked wonders. Right now, we are forecasting a surplus this fiscal year of almost $1,000,000. Normally, we would go on a shopping spree to make sure that we don’t have to return the money to the Town at the end of the year. But now we can put it in a separate account and use it next year. That way, we will have a cushion in case these security costs run over. Can someone make a motion?”

“I am shocked!” Bob responded. “As Chairperson of the Finance Committee, I should have been told about this surplus. I will follow up with you privately, Mr. Superintendent. But given the projected surplus, I agree with you, and I move that we transfer these funds into that carryover account for use next year.”

With little discussion, the Board passed the motion unanimously, authorizing Mr. Superintendent to put up to $1,000,000 in a carryover account. Will this money be available to the Board next year? 

                                                                   *         *         *
Not likely. The Board should know more about a fairly new statute, which we will review below. But before we do, there are several other issues of concern here.

First, there are various issues with the installation of security cameras. State law requires that employers, including school boards, notify employees of electronic monitoring, which is broadly defined as:

“Electronic monitoring” means the collection of information on an employer’s premises concerning employees’ activities or communications by any means other than direct observation, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic or photo-optical systems, but not including the collection of information (A) for security purposes in common areas of the employer’s premises which are held out for use by the public, or (B) which is prohibited under state or federal law.

Conn. Gen. Stat. Section 31-48d. While the scope of the obligation to warn employees about monitoring is broad, this statute excepts from its scope cameras and other monitoring “for security purposes in common areas which are held out for use by the public.” This exception covers the exterior security cameras and probably the hallways as well. But Bob’s plan to put security cameras “EVERYWHERE” has flaws that cannot be corrected simply by notifying employees that cameras are in use.

First, Section 31-48b prohibits any surveillance in “in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms or lounges.” Thus, cameras would not be allowed in the teachers’ lounge or similar facilities in any of the Board’s buildings.

Second, there are likely labor relations implications for Bob’s broad plan to install security cameras. The Connecticut State Board of Labor Relations follows the lead of the National Labor Relations Board on this point, and it has ruled that any general surveillance of employees is a mandatory subject of negotiations. To be sure, if an employer engages in limited surveillance for a specified purpose (for example, to see if the cafeteria manager is pocketing cash), it need not negotiate with the union(s) for the affected personnel. However, general surveillance in the workplace, such as the installation of cameras in classrooms, would likely trigger a duty to negotiate.

The other major issue here is the Board’s plan to set up a carryover account. Passed in 2010, Section 10-248a contemplates a carryover account, but not as the Nutmeg Board of Education is thinking of it:

Sec. 10-248a. Unexpended education funds account... [The] board of finance or the authority making appropriations for the school district for each town may deposit into a nonlapsing account any unexpended funds from the prior fiscal year from the budgeted appropriation for education for the town, provided such amount does not exceed one per cent of the total budgeted appropriation for education for such prior fiscal year.

Boards of education do not have the authority to set up such an account; rather, the statute gives that authority to the fiscal authority. Moreover, the statute does not specify the conditions under which a board of education may access the funds that the fiscal authority deposits in that account. Accordingly, before under-expending the budget to fund such an account, boards of education should have an understanding with the fiscal authority, preferably in writing, as to the purpose for such an account and as to whether and under what conditions the board of education may access the funds.

Finally, this month’s Freedom of Information problem relates to the meeting of the Finance Committee in Bob’s basement. Board committees are public agencies, and this meeting should have been posted and open to the public (without, however, any obligation to share the pizza with the public). Interestingly, however, if the gossiping over beer and pizza was about the Board generally and not the business of the Finance Committee, it may have be OK (at least under the FOIA). The meeting was over and less than a quorum of the Board members were present for the gossip.

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