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SEE YOU IN COURT! - November 2016

CABE Journal

November 2016

Authors: Thomas B. Mooney

Bob Bombast, veteran member of the Nutmeg Board of Education, couldn’t believe that he has never attended the CABE Convention before.  When he finally signed up and attended the 2016 Convention, he was surprised by and pleased with the wealth of information available through the various workshops.  He went from workshop to workshop Friday morning, learning more each time.

At the luncheon, Bob sat with his fellow Board members, Red Cent, Mal Content, Penny Pincher, and even Ms. Chairperson.  Mr. Superintendent was not able to make the luncheon, and Bob took the opportunity in his absence to criticize Mr. Superintendent’s performance and to urge his Board colleagues to rewrite the evaluation instrument.  Several board members from other towns were sitting at the table as well, and it was obvious to all but Bob that Bob’s criticisms of Mr. Superintendent were making them uncomfortable.

One of the board members from another town tried to redirect Bob by explaining that her board meets privately with its superintendent at the beginning of the year to set goals, and that the board and the superintendent meet every three months, again privately, to review the superintendent’s progress in accomplishing the goals that the parties have set.  However, as soon as she was done, Bob then started in again, insisting that the Nutmeg Board should get tough in its evaluation process.  To stop the embarrassment, Ms. Chairperson brusquely interrupted by exclaiming her great surprise and delight that the Cubs finally won the World Series this year.

Bob attended two more workshops that afternoon, and by the time of the banquet, Bob’s head was spinning with ideas for the Nutmeg Board of Education.  Bob behaved himself through the Banquet, but he was one of the first in line at the open bar in the Friday evening gathering for drinks, dessert and music.  Bob has always had a weakness for free alcohol, and he downed three drinks in rapid succession.  With his fourth drink in hand, Bob held forth with his fellow Board members.

“We need to find a new high school principal,” Bob began conspiratorially.  “Don’t get me wrong.  I like the guy.  But high school principal is a tough job, and our friend there is simply not up to the task.”  Ms. Chairperson chided Bob, telling him that the Board shouldn’t really be talking about the high school principal.

Bob pushed back.  “Look.  I know from that FOI workshop that the Freedom of Information Commission ordered that we can’t talk about staff members in executive session unless we let them join us in the executive session.  But this is a party, not a public meeting, and I think that we can talk about whatever and whomever we want.”

Ms. Chairperson shrugged, and the other Board members joined in the conversation.  Red Cent opined that perhaps Mr. Principal was getting too old for the job, and Mal Content complained that Mr. Principal should be more engaged with the sports teams.  Just then, Mr. Superintendent came into the room, less than thrilled to see the Board members hanging out at the bar and waving to him to join them.

Bob drained his fourth drink before he started in.  “We think that Mr. Principal isn’t cutting it, and we want you to move him out.  We don’t evaluate him, but we do evaluate you.  Understand?  I don’t want you to miss the point.”

*          *          *

Did Bob Bombast cross the line at the CABE Convention?

As usual, he did.  Starting with the FOIA issues, Bob was only part right about the gathering after the Convention banquet on Friday evening.  Whether or not one may fairly describe the after-banquet event as a “party,” Bob and the other Board members violated the FOIA by conducting Board business outside of a posted meeting.  The FOIA excludes various activities from the definition of “meeting,” including “any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business.”  While Bob could claim that the gathering around the bar was neither “planned nor intended” to discuss Board business, once he started the conversation about the high school principal and a quorum of other Board members participated, that discussion was indeed intentional, and it violated the FOIA because it was a “meeting” under the statute that was not posted.  Moreover, the fact that the Board members merely discussed Board business but did not take action does not change this conclusion.  The FOIA definition of “meeting” provides that a meeting occurs when a quorum of the public body convenes “to discuss or act upon” a matter within its jurisdiction.

Bob was also incorrect about executive session.  Public agencies must notify public employees or officials that they will be discussed in executive session, but the choice for the employee is simply whether or not to require that the discussion as to him or her be held in open session.  The employee or official cannot require that he or she be permitted to attend the executive session (unless of course the official being discussed is a member of the public agency conducting the meeting).  The public agency, however, can invite the employee or official to attend the executive session for all or part of the discussion.

The Board members created an additional problem for themselves in that the illegal discussion was about the performance of the high school principal.  As Bob noted, the Superintendent is responsible for evaluating him (and all Board employees), and board members should never initiate discussions about terminating any employee.  If and when it is time to fire the high school principal, the superintendent, not the board, is responsible for initiating the proceedings.  In such cases, the members of the board of education must maintain their impartiality.  If the superintendent recommends termination of Mr. Principal or any other certified staff member under the Teacher Tenure Act, the board members will act as a judge.  Prior conversation among board members to the effect the principal should be fired may fatally compromise their ability to fulfill this statutory responsibility in a fair and appropriate manner.

Bob and his Board colleagues should also be aware that the evaluation of the superintendent is not within its sole control.  Rather, Conn. Gen. Stat. Section 10-157 provides that the evaluation of a superintendent must be in accordance with “guidelines and criteria mutually determined and agreed” by the board and the superintendent.  Bob is free to have his opinion, but the Board must work with Mr. Superintendent if it wants to change the evaluation instrument.  And in so doing, both the Board and Mr. Superintendent should keep in mind the fact that any records created concerning the superintendent’s evaluation are public records under the FOIA.

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