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SEE YOU IN COURT! - June 2015

CABE Journal

June 2015

Authors: Thomas B. Mooney

Last year, Mal Content ran for the Nutmeg Board of Education on a platform of constituent service, with advertisements promising, “Tell me your problems, and I will find you solutions.”  Despite Mal’s grand promises, he was not elected.  But to his good fortune, one of the seated Board members took a job out-of-state, and Mal was appointed to fill the vacancy.  Mal promptly began his reelection campaign by creating a Facebook Page he named, “What’s Wrong with the Nutmeg Public Schools?”  There, he invited the public to unburden themselves of any and all concerns.  Furthermore, he promised all who write that, upon request, he would keep their names confidential.

The response from the public to Mal’s Facebook page was underwhelming.  One parent posted on Mal’s wall that the cheerleader outfits are cheesy, and another parent complained to Mal that her taxes are too high.  But interestingly three different parents sent Mal messages expressing their concern for the “excessive” amount of homework that teachers assign.  In each case, the parents cited concern for potential retaliation, and they asked that Mal not share their identity with anyone.

Mal was delighted now to have an issue to champion.  But first he wanted to do some research.  Mal started by making an impromptu visit to Nutmeg Memorial High School, where he popped in to see Mr. Principal.  “So, what’s the deal with homework,” he began the conversation.  “What are the rules teachers must follow in assigning homework?”

Mr. Principal was surprised by Mal’s visit and his question, but he didn’t want to get on Mal’s bad side, so he answered Mal’s question.  He explained that there are no “rules” per se, but rather decisions as to homework are left to the good judgment of each individual teacher.  Mal thanked Mr. Principal, and he then paid a similar visit to the principals of Median Middle School and Acorn Elementary School.  In each case, he got the same story – that teachers exercise their professional judgment in deciding when to assign homework and how much.  Mal was now ready for next Board meeting.

Mal bided his time as the Board worked through its agenda, but as the meeting neared its close, he piped up. “Mr. Chairman, I have an additional item for the Board’s consideration.  After exhaustive research, I have determined that our teachers are adrift, lacking important guidance regarding the amount of homework.  I am therefore asking the Board to adopt a policy to limit the assignment of homework to five minutes each day at the elementary school, fifteen minutes each day at the middle school and thirty minutes each day at the high school.”

Veteran Board member Bob Bombast was intrigued by the opportunity to adopt a new policy, and he started peppering Mal with questions.  Through those questions and answers, Mal and Bob filled in many of the details.  Mal then moved that the Board adopt his proposed policy, as amended through the discussion, and Bob seconded the motion with alacrity.  Mr. Chairperson, however, ruled that Mal’s motion was out of order, and he suggested that Mal present his “bright idea” at the next meeting of the Board Policy Committee.

 Was Mr. Chairperson’s ruling correct?

*        *        *

Mal’s motion was out of order, and Mr. Chairperson’s ruling was correct.  Moreover, Mal’s approach to this issue was wrong from start to finish.

At the outset, we note that the issue of homework can be an appropriate topic for Board policy judgments.  As policy makers, school board members should stay out of operational issues, and it appears that Mal does not understand his role as a Board member.  However, board members serve an important oversight role, and in that role they adopt policies to regulate the affairs of the school district.  In fulfilling that responsibility, board members listen to parents, and when a concern comes up repeatedly, it is proper to consider whether the board of education should adopt a policy to address that concern.  Moreover, by statute boards of education are required to adopt a number of policies.  CABE has a policy service that can provide helpful guidance in this regard, and that service is described here:  http://www.cabe.org/page.cfm?p=143.

It was thus appropriate for Mal to bring forward a concern to the Board of Education over whether the Board should adopt a policy on homework.  The problem was how he did so.  Here, Mal erred by operating on his own and raising the issue without giving the Board advance notice.  Many boards of education delegate the first-level discussion to committees, and Mal should have brought his concern to the policy committee in Nutmeg before coming to the full board with his “bright idea.”

In addition, Mal’s actions violated the Freedom of Information Act.  Under the FOIA, the agenda for meetings of public agencies must fairly apprise the public of the business to be transacted.  Moreover, the definition of “meeting” under the FOIA provides that a meeting occurs whenever a quorum of a mult-member public agency gathers to “to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”  However, Mal’s policy proposal was not on the agenda, and as soon as Mal and Bob started discussing the issue, they violated the FOIA.  Then, by making a motion that the Board adopt his new proposed homework policy, Mal just made the problem worse.  New items can be added to the agenda only at regular meetings and then only by a two-thirds vote.

Mal’s Facebook page also raises legal concerns.  Given his free speech rights under the First Amendment, Mal certainly has the right to have a Facebook page related to his service on the Board of Education.  As a practical matter, however, Mal should make clear that the page in question is his own page, which is not sponsored or approved by the Board itself.  Moreover, Mal should be aware that records, electronic or otherwise, that relate to his Facebook page are public records.  Mal is a public official, and records created, received or maintained by a public office are public records if they relate “to the conduct of the public’s business.”  Conn. Gen. Stat. Section 1-200(5).

Mal should also be careful about making promises that he cannot keep.  Mal has informed people who may write to or post on his Facebook page that he will keep their identity confidential, but that may not be possible.  Citizen queries or comments on Mal’s Facebook page that relate to the Nutmeg Public Schools are subject to public disclosure unless there is a privilege to keep such matters confidential.  To be sure, the identity of parents who write to school officials about their children is confidential under FERPA as a “student record.”  But other communications to Mal (or other Board members) are public records unless they are otherwise exempt from disclosure.

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