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SEE YOU IN COURT! - May 2015

CABE Journal

May 2015

Seymour Dollars, the irascible Chairperson of the Nutmeg Board of Finance, gave the Board of Education a very hard time throughout the entire budget process this year.  He questioned the Board down to the minutest detail of its budget estimate, and he seemed always to have a better idea about how to run the Nutmeg Public Schools.  Despite the best efforts of Mr. Superintendent and the Board members, ultimately Seymour recommended that the Board of Finance cut the proposed Board of Education budget by $500,000.  At its next meeting, before submitting the budget to referendum vote, the Board of Finance unanimously cut the Board’s budget as Seymour proposed.

Not even the Board of Education would have predicted what happened next.  A group of parents formed RUB (“Residents Upset about the Budget”), an advocacy group opposing the cuts made in the Board budget.  It filed with the State Elections Enforcement Commission as a political action committee (PAC), and it promptly began a vigorous campaign.  None of the donors gave much individually, but support for restoration of funds to the Board’s budget was widespread, and soon SOS raised $5,000 for its campaign to defeat the budget because it was too low after Seymour’s cuts.

RANT (“Residents Against New Taxes”), the local taxpayer group, took note, and (already a PAC) it too urged voters to reject the budget because, even with the $500,000 cut, the budget provided for an increase in Board of Education spending.  Given this unholy alliance, the budget went down to defeat. Six times. 

As the fiscal year is winding to a close, both the Board of Education and the Board of Finance have grown increasingly frustrated by their inability to pass a budget for next year.  Finally, even Seymour was rethinking things, and on behalf of the Board of Finance, he recently invited the Board of Education to a joint meeting.  Mr. Chairperson asked Mr. Superintendent whether the meeting should be posted, but he said no, that it was Seymour’s meeting, not that of the Board of Education. 

When the meeting was convened, Seymour asked for a motion to go into executive session for “negotiations,” i.e. negotiations over a budget that both boards could support.  But members of both the Board of Finance and the Board of Education objected, and the meeting was conducted in public.  Surprisingly, the Board of Finance and the Board of Education played nicely together despite the public setting, and they quickly reached an agreement to submit a new budget to the voters, one that added $250,000 back to the budget, or one-half the prior cut.  They even agreed that a flier would go home with students reminding parents of the time and place of the seventh referendum vote with the message, “Détente!  Town Boards finally agree on budget, and now you just have to vote too.”

The members of RANT were aghast at actions of the Board of Finance, and its president promptly filed complaints with the Freedom of Information Commission and the State Elections Enforcement Commission, alleging that the Nutmeg Board of Education had violated the law.  Meanwhile, a weary public came to the polls and overwhelmingly approved the budget.

Does the Nutmeg Board of Education have anything to worry about? 

*        *        *

Sadly, the Board may have violated both the Freedom of Information Act and the state elections laws, specifically Connecticut General Statutes, Section 9-369b. 

The FOIA provides as follows:

A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.

Conn. Gen. Stat. Section 1-200(6).  Read literally, this provision of the FOIA would make it unnecessary for the Nutmeg Board of Education to post the joint meeting that it had with the Board of Finance.  However, the provisions of the FOIA are interpreted broadly in favor of public disclosure, and this provision would not obviate the need here for the Board of Education to post the meeting as well.  The key is that the members of the Board of Education did not merely attend the meeting, but rather they participated in their role as Board of Education members.  Accordingly, the FOIC would rule that meeting was indeed one of both the Board of Finance and the Board of Education and that both bodies should have posted the meeting.

Fortunately, this problem was not compounded by the further error of discussing these matters in executive session as Seymour proposed.  “Negotiations” is used in the FOIA specifically to permit confidential discussion of collective bargaining matters in two ways.  “Strategy or negotiations with respect to collective bargaining” is excluded from the definition of “meeting.”  Moreover, public agencies may convene into executive session to discuss information contained in confidential documents, which include “Records, reports and statements of strategy or negotiations with respect to collective bargaining.”  However, there is no exemption for “negotiations” more generally, and public agencies must find another basis for executive session (e.g., pending claims and litigation), if indeed one exists for the situation.

In addition, the Nutmeg Board of Education may have violated the prohibition against spending public funds to advocate a referendum result, as set forth in Conn. Gen. Stat. Section 9-369b.  Interestingly, when the General Assembly voted in 2013 to prohibit boards of education from sending electronic reminders to vote (even those limited to the time and place of the referendum vote), it did not change the long-established rule on sending information with students.  Boards of education may still send reminders home with students as long as the reminder is limited to the time and place of the vote and does not advocate a referendum result.  The problem here, however, is that by announcing that the town boards had finally agreed on the budget, the reminder suggested that the voters should do the same.

Finally, we note Seymour’s fascination with line items.  Boards of education must vote to make line item transfers unless they delegate that authority “under emergency circumstances if the urgent need for the transfer prevents the board from meeting in a timely fashion to consider such transfer,” and they must then announce the transfer at their next meeting.  Moreover, as of 2013 they must report now any such transfers to the chief executive officer of the town.  However, at the same time the General Assembly also added new language providing that a “line item” may be a broad budget category.  By broadly defining their “line items” in presenting the budget to the municipality, boards of education may avoid triggering these requirements when minor changes in the budget are required over the course of the year.

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