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SEE YOU IN COURT! - June 2017

CABE Journal

June 1, 2017

Authors: Thomas B. Mooney

The members of the Nutmeg Board of Education are tired of having to put up with the constant barrage of criticism. Cut teaching positions? The parents go crazy. Add teaching positions? The taxpayer group goes crazy. To make matters worse, even talking about different options brings the critics out of the woodwork, who then seek to pit Board member against Board member.

As Chair of the Finance Committee, veteran Board member Bob Bombast reached out to his Board colleagues by email: “We need to do something. If we can work together confidentially in the first instance, we can get our act together and present a united front publicly after we make the tough decisions.” Several Board members concurred by email, and they went back and forth as to how, also by email.

Reading the emails, Mr. Superintendent saw that the Board members were conducting a discussion of Board business by email, a violation of the Freedom of Information against which he had already warned them verbally. The next morning, he called up Mr. Board Attorney and asked for his help. Mr. Board Attorney understood precisely what was needed, and in short order he wrote an email to the Board members warning them against conducting discussions of Board business by email. Significantly, he captioned his email “CONFIDENTIAL ATTORNEY CLIENT COMMUNICATION,” so that the Board members would know that Mr. Board Attorney was giving them confidential legal advice.

Initially, Bob Bombast was annoyed at being chastised again, wondering whether Mr. Board Attorney didn’t have anything better to do. But then Bob had a Eureka moment. Since emails to and from the Board lawyer are confidential, he figured, sending emails through Mr. Board Attorney would be a great way to take care of Board business discretely and confidentially.

He promptly wrote back to Mr. Board Attorney, thanking him for his wise counsel, and he also expressed appreciation for the fact that the Board can now discuss controversial matters with Board counsel confidentially, whether by email or in person.

Bob and the Board then continued their email discussions of Board business, but now they carefully assured that Mr. Board Attorney was copied on all the emails going back and forth. Indeed, the Board members included some pretty extraordinary statements in their emails, seemingly secure in their belief that that the public would never see their emails as long as Mr. Board Attorney was included on the email.

With the budget pressures this spring, the Board is considering some drastic cuts, including possibly closing a school. Given the significance of these issues, Bob decided that an in-person private discussion is needed. Accordingly, he has called an executive session of the Finance Committee, invited Mr. Board Attorney to attend the meeting, and posted it as “Discussion of Confidential Attorney-Client Communications.”

Can the Committee go ahead with the budget discussion in executive session?

* * *

The proposed discussion of budget cuts is not privileged to executive session, whether or not Mr. Board Attorney attends the meeting. Executive session would be proper here only to discuss legal advice Mr. Board Attorney has provided in writing. Similarly, Board member emails to each other are public, even if Mr. Board Attorney is included on copy, unless they are requesting and/or receiving legal advice or the subject matter of the email is otherwise exempt. Budget matters are, of course, not exempt from public disclosure.

The attorney-client privilege reflects an important public policy to permit persons and entities (including public entities) to request and receive legal advice confidentially. However, everything that a lawyer says is not confidential, and it is important to understand the scope of the attorney-client privilege.

First, the communication must be for the purpose of requesting and receiving legal advice. Just last year, the Connecticut Supreme Court elaborated on this requirement in Harrington v. Freedom of Information Commission, 323 Conn. 1 (2016), and it described the requirement as follows:

Nonetheless, it is not enough for the party invoking the privilege to show that a communication to legal counsel relayed information that “might become relevant to the future rendering of legal advice. Instead, the communication must also either explicitly or implicitly seek specific legal advice about that factual information.” (Citations omitted).

* * *

“Lest a non-legal element become the tail that wags the dog, a clear and significant nexus between attorney-client communications and legal advice or assistance is rightly expected. In classifying the character of the communication, the crucial inquiry is whether the intent of the client, in deciding to approach the lawyer, is to obtain legal counsel, even if other dimensions of a matter are addressed as well.” (Citations omitted).

Communications in which the attorney is simply included (even if the matter may later become the subject of a legal controversy) will not be confidential when such communications are not for the purpose of requesting and/or providing legal advice.

Second, the communication must be kept confidential. If legal advice is shared with third parties outside of the attorney-client relationship, the privilege is lost. For example, the Superintendent can request and receive advice concerning potential liability arising from PTO activities, and such advice may be maintained as confidential. But the privilege would be lost in this case if the Superintendent or a Board member shares that legal advice with the PTO leadership.

Third, there is no general executive session privilege to discuss legal advice. However, executive session is permitted for the purpose of discussing information contained in confidential records, and “communications privileged by the attorney-client relationship” are exempt from disclosure under the FOIA. Thus, there must be a written communication containing legal advice before a public agency in Connecticut can discuss that legal advice in executive session.

Finally, when a board of education discusses legal advice in executive session, it is important that the posting of the agenda comply with legal requirements. The Freedom of Information Commission has long required that when discussing “pending claims and litigation,” the posted agenda must refer to the claim or litigation in question. Just last year, a Superior Court judge extended this principle to the posting of an executive session discussion of a privileged attorney-client communication. In that case, the court ruled that simply posting “discussion of a confidential attorney-client communication” is inadequate, and the posting must now include reference to the subject of the communication so that the public is fairly apprised of the business to be transacted.

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