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SEE YOU IN COURT! - June 2016

CABE Journal

June 2016

Authors: Thomas B. Mooney

Given the chronic underfunding of education in Nutmeg by the Board of Finance and its irascible Chairperson, Seymour Dollars, the Nutmeg Board of Education has had to be careful in its spending on discretionary issues, including curriculum revision.  As a result, the curriculum in Nutmeg is now so outdated that parents are asking questions like “why do our textbooks still refer to the Soviet Union?” and “why is there no mention in the curriculum of the Internet?”  Embarrassed by these questions, the Board’s Curriculum Committee was impelled to action.  Curriculum Committee Chair Bob Bombast has been doing a lot of research, and he shared his findings with the other Committee members by email.  Through a few exchanges, Bob and his colleagues on the committee decided that the Committee didn’t even need to meet to recommend to the Board that it jump with both feet to the Common Core State Standards. 

At the Board meeting last month, on behalf of the Committee Bob announced a “new day” for learning in Nutmeg.  With little discussion and upon Bob’s recommendation, the Board quickly approved the new curriculum based on the Common Core State Standards that Bob had found online.

Matt Matticks is a math teacher at Median Middle School in Nutmeg, and from what he has read in the National Enquirer, he is totally opposed to the Common Core State Standards.  Matt objects to the Common Core State Standards because, from what he knows, they “dumb down” the curriculum and take away parental control.  Parental control is particularly important to Matt, because he has three children enrolled in the Nutmeg Public Schools, in grades 4, 7 and 9 respectively.

At the next Board meeting, Matt was first to speak during Public Comment, and his critique of the Common Core State Standards was obnoxious, rude and occasionally vulgar.  Ms. Chairperson interrupted Matt halfway through comments, asking whether he was speaking as a teacher or a parent.  Matt ignored the interruption, and continued on with his attack.  He ended his diatribe against the Common Core State Standards by threatening to hold any Board member who votes in favor of the new curriculum personally liable for this “egregious interference” with his rights as a parent.

The Board members were shocked by Matt’s invective.  At the end of the meeting, the Board adjourned into executive session to discuss “personnel matters,” as it does at the end of virtually every meeting.  Once in the executive session, Bob Bombast wondered aloud whether Matt was unhinged.  The other Board members expressed similar concerns, and they told Mr. Superintendent to see what is up with Matt.  Dutifully, Mr. Superintendent followed up by directing the IT Director to read through Matt’s school email to see whether Matt was up to anything wrong.  As it turns out, Matt had sent a number of harassing emails to female staff members.  When Mr. Superintendent learned of Matt’s inappropriate emails, he promptly called Matt to his office and confronted him with the evidence.  Mal admitted that he wrote the emails, and Mr. Superintendent suspended him with pay pending a discussion with the Board. 

In the executive session last evening, Mr. Superintendent reported back to the Board and asked whether Matt should be fired.  Should he be?

*        *        *

Maybe.  But through its actions, the Nutmeg Board of Education has made a mess of the situation.  First and foremost, Mr. Superintendent should not have discussed Matt’s potential termination with the Board.  In addition, this situation raises a number of FOIA issues and even constitutional concerns.

By statute, the superintendent is the chief executive officer of the Board of Education, and as such he or she is responsible for supervising and, where necessary, disciplining teachers and other employees.  The board of education is not responsible for such matters, and indeed may have to act in a quasi-judicial role if it is asked to consider the superintendent’s recommendation for termination.  Matt has a right to due process as regards any taking of his employment, and the Board here was prematurely and inappropriately involved in discussions with the Superintendent over Matt’s possible termination.  In any subsequent proceedings, Matt would be able to claim that the Board was already biased against him and, as such, incapable of appropriately fulfilling its statutory duty as judge to consider his situation impartially.

The Board’s actions also raise a number of FOIA issues, starting with Bob’s leading the Curriculum Committee through a decision-making process without calling a meeting that the public could attend.  A “meeting” occurs when a quorum of a public agency convene, by electronic means or otherwise, to discuss or act upon a matter within its jurisdiction.  As a public agency subject to the FOIA, the Curriculum Committee should have posted a public meeting and held its discussion at that meeting.

The FOIA violations as to Matt were even more serious.  First, the Board’s practice of convening into executive session by announcing that it would be discussing “personnel matters” is not allowed.  The Freedom of Information Commission has held repeatedly that the requirement that a public agency state the reason for the executive session requires more information than a simple reference to “personnel matters.”

Matt’s personal rights were violated as well.  As the subject of the executive session discussion, Matt had a right to require that the discussion as to him be held in open session.  For employees or officials being discussed in executive session to be able to exercise that right, however, they must be notified in advance of the discussion. 

This situation even implicates Matt’s constitutional rights.  Ms. Chairperson asked Matt was speaking as a teacher or a parent, and indeed that distinction matters.  When public employees speak pursuant to their public duties, they do not have free speech protections under the federal constitution (though they retain some protections under the state Constitution).  However, here Matt was not speaking pursuant to duty and as such he has the right to speak out as long as his speech is not disruptive.  If he is disciplined here, he may raise a First Amendment retaliation claim.

Finally, school officials must be careful about searching email accounts.  Presumably, Matt had to sign an acceptable use policy that reserves to school officials the right to review all emails on the server.  However, privacy interests may have evolved by custom, and the courts have been reluctant to give employers carte blanche with such searches.  The standard Fourth Amendment tests should be applied to such searches – is there reasonable cause for the search at its inception, and is the scope of the search reasonably related to the object of the search?  Here, it is difficult to see any connection between Matt’s rude speech in public session and the search of his email.

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