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SEE YOU IN COURT! - November 2013

CABE Journal

November 2013

Polly Planner was newly elected to the Nutmeg Board of Education this year. An engineer by occupation, Polly was eager to impose some order on the Nutmeg Public Schools. At her very first meeting, Polly started waving her hand when the Board got to New Business, and she did not stop until Mr. Chairperson recognized her.

“Mr. Chairperson, my fellow Board members and beloved Nutmeggers. I am honored to serve on this Board of Education. But I must tell you that we are woefully unprepared for high school reform. We need to take action now, and I move that I serve as the chairperson of an ad hoc committee to implement all statutory obligations related to establishing new expectations for our high school students...”

Veteran Board member Bob Bombast was not impressed with his new colleague, and he interrupted her. “Just hold on, Polly. When is all this supposed to happen?”

“2020,” Polly responded. “But these obligations will be upon us before you know it. We need to get on top of this now and start planning.”

Bob snorted, “2020? I think we had better worry about the Cadillac Tax under Obamacare before we worry about high school reform.”

However, Polly did not back. “Mr. Chairperson,” she chided, “there is a motion on the floor, and I do expect the Board to act on it.”

Mr. Chairperson was not used to being challenged publicly, but rather than engage in a public squabble with this new Board member, he asked for a second. To his surprise, Penny Pincher seconded the motion, and she and Mal Content spoke enthusiastically about Polly’s proposal. Mal even amended the motion to name him and Penny the other members of the ad hoc committee. Clearly there had been some behind-the-scenes discussion without involving him, and Mr. Chairperson was further perturbed. But when Penny, Polly and Mal were done talking up Polly’s idea, he had to call the vote, and the motion passed 3 to 2, with him and Bob voting against.

Polly thanked the Board for its support, and she announced that the first meeting of the ad hoc committee would be at her house next week. The first few meetings, she explained, would be informal and private as she reviewed her ideas with Mal and Penny. “When we have a draft of our plan, we will open the discussion up to the public and invite the rest of the Board and the public to comment on it.”

Mr. Chairman moved on with the agenda, but at the very end of the meeting, he announced that he was adding a new agenda item for executive session, “Discussion concerning the performance of a board member.” The public portion of the meeting ended on an uncertain note as Mr. Chairman asked for a motion to go into executive session for that purpose, which passed unanimously.

The room was just cleared when Mr. Chairperson started in. “How dare you?” he confronted Polly. “You can’t just spring surprises, you know! If you want something on the agenda, you have to tell me in advance. Got it?”

Polly was shocked at Mr. Chairperson’s outburst. But before she could even respond, Mr. Chairperson laced into her again. “And another thing! I don’t want you cooking up deals behind my back. Got it? This meeting is over.” With that, Mr. Chairperson got up and stormed out.

What did Polly do wrong here? 

                                                        *                    *                    * 

Polly may be forgiven her enthusiasm for Board service, but both she and Mr. Chairperson must learn about the Freedom of Information Act. Polly raised a matter that was not on the agenda for the meeting, and the Board then acted on that matter in violation of the Freedom of Information Act. To be sure, the FOIA permits public agencies to add items to the agenda, but only under certain circumstances.

Specifically, items can be added to the agenda only at a regular meeting and only with a two-thirds vote in favor of adding the item. Polly’s ad hoc proposal for an ad hoc committee violated these requirements, as did Mr. Chairperson’s ad hoc executive session (also not on the agenda) to scold Polly. Moreover, Mr. Chairperson should have notified Polly before the executive session. As the subject of the discussion, Polly could require that the Board hold any such discussion about her performance in open session.

Polly must also understand that committees of public agencies are themselves public agencies under the FOIA, and they are subject to all FOIA requirements, including posting, minutes and public access. Polly’s plan to exclude the public from informal committee meetings at her house violated the FOIA.

Interestingly, Polly’s discussions with Mal and Penny did not violate the FOIA. If a quorum of the Board were to discuss Board business outside of a posted meeting, it would be an illegal meeting. However, less than a quorum can certainly discuss Board business without triggering the “meeting” requirements as long as they do not coordinate the sharing of such information with a quorum of the Board.

Finally, this is a good time to review where we are with high school reform. In 2010, the General Assembly passed educational reform legislation that included comprehensive changes to the requirements for high school graduation. Public Act 10-111, Section 16. Those changes were to be effective with the high school class graduating in 2018, and would thus have been applicable to the class entering high school next fall. However, Public Act 11-135 pushed these dates back, and now all of these new requirements will be effective for the high school class entering in the fall of 2016 and graduating in 2020. This delay was welcome in some quarters, because the new requirements for high school graduation are daunting. The new requirements include twenty-five credits (instead of the current twenty), and there are detailed provisions as to what specific credits are required. The new standards will change the requirement from three credits in mathematics and two credits in science, for example, to “eight credits in science, technology, engineering and mathematics,” with detailed specification of the course credits that will be required. Clearly, significant planning will be required to meet these new requirements.

Finally, while these credit requirements will first directly affect students entering high school in 2016, the future is now as regards remedial services. Connecticut General Statutes, Section 10-221a provides that boards of education “shall provide adequate student support and remedial services for students beginning in grade seven,” and the statute prescribes what support and remedial services must be provided, including “allowing students to retake courses in summer school or through an on-line course.” Given that the first affected cohort will enter seventh grade next fall, Polly has a good point, and districts should start their planning now.

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