SEE YOU IN COURT! - March 2014

As was its custom, the Nutmeg Board of Education convened in executive session at 6:00 p.m. for an hour before its regular meeting started at 7:00 p.m. Veteran Board member Bob Bombast arrived a few minutes late. He was surprised to see Nancy Newshound standing outside the room with her ear to the door.

“What on earth are you doing?” Bob thundered. “The Board is in executive session, and you are violating the law.”

Nancy, a fixture at Board meetings in her role as reporter for the Nutmeg Bugle, was surprised but not intimidated when Bob confronted her. “Oh really? How is it that the Board is properly in executive session? I have been here since 5:45 p.m. Board members walked by me into the conference room. Some even said hi. But the Board never convened a meeting. So I was just listening in on the conversation.”

“Oh sure” Bob responded. “Just listening . . . .” Bob pushed past Nancy and joined the other Board members in the conference room.

“What is wrong with you,” Mal Content asked. “You look awfully cranky.”

“It is that Nancy Newshound! I don’t know what her problem is. We have ‘Executive Session’ on the agenda, don’t we?” Bob asked.

“Of course. Just as we do every month. What is the problem?” asked Mal.

“Nancy claims that we should have started the meeting in public session and that she had the right to listen in on our discussions until we did.” Now Bob was wondering whether Nancy had a good point. “Maybe we should take care of the niceties and avoid a problem with the press,” Bob suggested.

“OK, OK,” responded Mr. Chairperson, as he opened the door to the conference room. “Come on in, Nancy. There has just been a misunderstanding here, and we want to put things right. Will the March meeting of the Nutmeg Board of Education come to order! Mr. Superintendent, what is the first order of business?”

“Executive session. Nancy, will you please leave now?”

Nancy looked up in surprise, but then smirked. “Have it your way,” she said.

Once Nancy left the room, the Board members relaxed. Left in the room were only the Board members, the Superintendent, the Assistant Superintendent, the Superintendent’s secretary and his administrative intern. “Finally,” Mr. Chairperson said with a sigh, “it is just us friends. Mr. Superintendent, what do you have for us today in executive session?”

“Just a few things,” responded Mr. Superintendent. Mr. Superintendent then updated the Board on custodian negotiations. Mr. Superintendent also warned the Board members to behave during a grievance that was scheduled for later that night. As the Board was wrapping up the executive session, Board member Penny Pincher, told Mr. Superintendent about a parent complaint concerning a teacher.

“Wow,” said Mr. Chairperson. “We have a lot going on! It is a shame that Nancy cannot attend our executive session, isn’t it?” Mr. Chairperson chuckled.

Will Nancy Newshound have the last laugh here?

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The Nutmeg Board of Education has forgotten that executive session is appropriate only when it complies with the related legal requirements.

First, before a board of education (or any other public agency) can convene in executive session, the board must have on its agenda a topic that is privileged to executive session. Significantly, “executive session” is not an agenda item, and those words alone on a board agenda never themselves authorize an executive session. Conversely, there is no requirement under the FOIA that the agenda include reference to executive session. Rather, there must always be an agenda item, the discussion of which may occur in executive session. If there is and the board follows the procedural requirements as set forth below, the board can convene in executive session.

The FOIC sets forth five topics that are privileged to executive session:
• The appointment, employment, performance, evaluation, health or dismissal of a public officer or employee. (NOTE: the officer or employee may require that the discussion as to them occur in open session, but the officer or employee cannot insist upon attending the executive session.)
• Strategy and negotiations with regard to pending claims or litigation.
• Security strategy or the deployment of security personnel or devices.
• Acquisition of real estate if publicity concerning the site could cause an increased price and only until all such property has been acquired or the transaction is otherwise over.
• Information contained in records exempt from disclosure under the FOIC.

That last category permits executive session discussion of various topics that are confidential, including attorney-client privileged communications, confidential collective bargaining strategy documents, and personally-identifiable student information (which is the basis for holding student expulsion hearings and school accommodation hearings in executive session).

The procedural requirements for executive session are simple, but they are crucially important. When the board has an agenda item appropriate to executive session, it must meet two requirements.

First, the motion to go into executive session requires a two-thirds vote. The calculation is made on the basis of those present and voting, and where votes are weighted in regional school districts, those weighted votes count in reaching the requisite two-thirds vote. Second, in taking that vote, the board must state the reason for the executive session. Doing so is important, because that reason must be set forth in the minutes of the meeting. Moreover, the Commission has ruled that the statement of the purpose of the executive session must give the public fair notice of what is being discussed. The Commission has ruled repeatedly, for example, that “personnel matters” or “litigation” is not adequate notice, and the board must provide more information in its motion to go into executive session.

The last procedural requirement deals with those who attend the executive session. The minutes of the executive session must list the names of those present (except for persons attending for the purpose of a job interview). Equally important, attendance at the executive session must be limited to the members of the board and those persons whose opinion or testimony it requests. Some of those present in Nutmeg should not have attended the executive session, including the secretary and the intern.

Finally, board members must be vigilant to stay on topic. Executive session is a privilege that allows confidential discussion only as permitted by law. It is tempting to share juicy information in the comfort of executive session. But it is illegal to discuss any topic in executive session except as permitted by the FOIA.