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SEE YOU IN COURT! - March 2017

CABE Journal

March 1, 2017

Authors: Thomas B. Mooney

Sally Scrivener was elected to the Nutmeg Board of Education last November, and she was surprised when her Board colleagues voted to elect her to serve as secretary of the Board.  Sally is nothing if not conscientious, and she has taken her role very seriously.  At each meeting of the Board, Sally assiduously scripts the proceedings, and she then carefully crafts her detailed minutes and sends them to Mr. Superintendent’s secretary in a Word document to publish on the Board website. 

Sally’s efforts to produce verbatim minutes have had an unintended consequence.  What was a perfunctory exercise to approve the minutes each month has become a lengthy debate, as Board members offer various corrections to the detailed minutes, sometimes in an attempt to appear more thoughtful and articulate than Sally had described.  After one especially contentious and lengthy review of the draft minutes, Bob Bombast spoke up, asking Sally not to go so “crazy” and to provide a more general description of the Board’s discussions and actions. 

Sally was grateful for the feedback, and she thanked the Board members for helping her to do a better job.  In responding, Sally mentioned that she would also be less detailed in keeping the minutes of executive sessions.

“What?!!” expostulated Bob Bombast.  “Surely, you are not keeping minutes of our executive session discussions??!”

“My name is Sally, Bob.  And as secretary of the Board, I felt that it was my duty to keep minutes of our executive session discussions.  How else can we show that we stayed within the lines during the executive session?”

Ms. Chairperson was concerned as well.  “Sally, why are we just learning this now?  We had no idea that you were taking minutes of our private discussions.”

Now Sally was confused.  “But you told me to take the executive session minutes, don’t you remember?  So I did.”

“I only meant to record who was there, when we convened the executive session, the topic of the executive session, and when we left executive session.”

“Oh, I have all of that,” said Sally.  Plus a description of our discussions.”

“I am not sure that was a good idea,” Ms. Chairperson responded fretfully.  “Send the draft minutes along for our review, and we will decide how to handle these minutes in the future.

Ace reporter Nancy Newshound of the Nutmeg Bugle listened with great interest to the Board’s discussion of Sally’s actions as Board secretary.  The next day, she wrote an email to the full Board and Mr. Superintendent.  In her email, Nancy warned the Board that by law its minutes should provide a detailed account of the Board discussion.  To make matters worse, Nancy ended her email with an FOIA request for “all minutes, Board member notes and other recorded information concerning Board executive sessions since November 2016.”

What, if any, records concerning those executive sessions must the Board disclose in response to Nancy’s FOIA request?

*    *    *

In her efforts to be thorough, Sally has created a significant problem for the Board of Education.  Under the Connecticut Freedom of Information Act, separate and inconsistent statutory provisions govern the executive session privilege and the right of public agencies to keep certain records confidential. 

Before tackling that disconnect, let’s take a general look at the legal requirements for board of education minutes.  We start with the premise that all public agencies (including committees composed of or created by board of education members) are subject to these rules because they emanate from the Freedom of Information Act itself.  Public agencies are required by law to “make, keep and maintain a record of the proceedings of its meetings,” and they must make their minutes available for public inspection within seven days.  Public agencies (other than the state) are not required to post minutes on their websites, but most do.  In any event, a record of any votes taken must be available for public inspection within forty-eight hours and must then be incorporated into the minutes of the session.  More generally, minutes should state the time and place the meeting occurred, what members of the public agency were in attendance, and must record any votes taken by the public agency.

There are special rules for executive session.  The minutes of the public agency must state the reason for the executive session, and they must list the name all persons in attendance (except for persons attending the executive session for a job interview).  As with minutes of the meeting in general, the minutes of executive session should also show when the executive session commenced and when it adjourned.

From these requirements, we see that it is not necessary (and may be problematic) to have detailed minutes that are time-consuming to create and review.  The minutes can be a simple description of the meeting, including the various required elements described above.  As an operational matter, board members should consider for themselves how much further detail they want for their minutes.

Sally’s taking minutes of the executive session discussions is a big problem for Nutmeg because the FOIA rules for meetings and for records are separate and different.  A public agency can convene into executive session for one or more of five reasons set forth in the law, and a public agency can withhold from disclosure certain public records that are exempt in accordance with the statute.  However, these two provisions are separate, and there is no general exemption of records related to executive session. 

When Sally distributed her minutes of executive session discussions to the other Board members, those minutes became public records subject to disclosure unless there is an applicable exemption.  For example, boards of education may discuss the evaluations of superintendents confidentially in executive session, but there is no exemption from disclosure for those evaluation records, and they would thus be subject to public disclosure.  In sum, board members should not create records of executive session discussion. 

Finally, one further clarification may be helpful.  Some board members are inveterate note-takers, and they may now wonder whether they may even take memory notes during an executive session discussion.  The Appellate Court has ruled that memory notes, kept confidential by a member of a public agency, may be considered “preliminary drafts or notes” that are exempt from disclosure under the FOIA unless they are shared with the other members of the agency.  Private notes kept confidential will not be subject to disclosure under the FOIA.

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