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SEE YOU IN COURT! - October 2012

CABE Journal

October 2012

As September became October, the Nutmeg Public Schools settled into routine, and Mr. Superintendent started to focus on the challenges of operating for the fourth straight year under the cloud of financial stress. Unfortunately for the Nutmeg Board of Education, Mr. Superintendent was not the only one paying attention to the budget. Bruce Bellicose, founder of Residents Against New Taxes (RANT), has been attending every meeting of the Board. During public comment, Bruce rails against the greedy teachers, incompetent administrators and clueless Board members. The Board limits speakers during public comment to four minutes, but Bruce makes sure that he uses every precious second to heap abuse upon the Board. At the beginning of every meeting, Bruce claims financial mismanagement by the Board and Administration, intimating more sinister motives, as he wonders aloud who is getting paid off.

At the end of the meeting last week, the Board members convened into executive session to discuss what to do. Mr. Board Attorney had written a legal opinion, telling the Board that Bruce has free speech rights, but veteran Board member Bob Bombast wasn’t convinced. “Mr. Board Attorney is always so cautious. Where did he go to law school anyway?” Bob groused. “I know how to solve this problem. Just watch me at the next Board meeting.”

“The larger question here,” interjected Mr. Chairperson, “is how we are going to do our budget deliberations. I am sick and tired of all the embarrassing questions that you all ask Mr. Superintendent in public session when we review his budget recommendations. How can we better show a unified front to the public?”

“Amen,” responded Mr. Superintendent. “Do you guys set out to embarrass me or does it just happen? I would love to hear a sentence that does not begin with ‘Why don’t you . . .’ I am so sick of being second-guessed that I could scream.”

“Look,” responded Bob Bombast. “We need to show the public that we are riding hard on the administration. It is as simple as that. Maybe we should give you a good evaluation and make it public this time. That way the public will know that we value you even if it seems that we know better than you do how to run the district.”

“On that note, I declare this executive session over,” intoned Mr. Chairperson. “Let’s just remember that we can talk about some of the more controversial items over email. That might help tone down our public discussion.”

At the Board meeting this week, sure enough Bruce Bellicose was there. But as he got up to speak, Bob Bombast was ready. “What is on your mind, Bruce?” he asked pointedly. When Bruce started to explain that he was concerned about the Board budget and the incompetents on the Board, Bob cut him off. “We have heard your concerns. Repeatedly. Until you have something new and positive to contribute, just sit down.”

Bruce started to protest, but Mr. Chairperson banged his gavel. “I agree with Bob here, Bruce. You have kicked this budget thing to death. Sit down. Now.”

Bruce sat down. But as he did, he shot a warning back to the Board. “This is not the last word. I have free speech rights. You will be sorry.”

Did the Board act within its rights in the interest of efficient operation? 

                                                            *             *             *
Bob and the Nutmeg Board of Education likely violated Bruce’s free speech rights, as discussed below. But the Board’s problems here involve other issues as well.

As to Bruce and his rights, we start with the observation that boards of education are not obligated to provide an opportunity for public comment. Their meetings are meetings in public, not public meetings. However, when boards provide for public comment, they create a forum for speech, and they thereby become subject to First Amendment requirements. Reasonable regulations as to time, place and manner of speech are allowed. For example, boards typically limit speakers to three to five minutes. Boards can prohibit vulgar speech and/or personal attacks. Boards can even create forums for speech on a specific topic, e.g., a public hearing on the budget. However, boards may not restrict speech based on the viewpoint of the speaker.

Here, Bruce was repetitive (indeed unrelenting) in his criticism of the Board. But he was not vulgar or abusive, and he stayed within the four-minute time limitation established by the Board. If Bruce shouts, swears or is threatening, the Board can cut him off. But his merely being repetitive is not a legitimate basis for denying him the chance to speak in the forum that the Board created.

The Board also violated the Freedom of Information Act. To be sure, the Board had the right to discuss the written legal opinion of Mr. Board Attorney in executive session. Boards can convene into executive session when discussion would otherwise reveal information in a confidential document. Here, the information was privileged by the attorney-client relationship. The FOIA contains a list of confidential documents that may be discussed in executive session, such as student or negotiations documents.

Here, however, the Board violated the FOIA when it veered off that topic and discussed the budget process more generally. Indeed, Board members sharing their opinions over email to avoid contentious public discussion, as Mr. Chairperson suggested, would invite the further claim that the Board members were conducting an illegal meeting by email by holding a “discussion” outside of a posted meeting.

We note that Mr. Superintendent took this opportunity to criticize the Board members for their embarrassing questions. Interestingly, if there were a proper posting, this discussion could have been held in executive session. Boards of education can discuss the performance of individual Board members as well as that of the Superintendent (and other board employees) in executive session as long as the individuals being discussed do not require that the discussion be held in public.

The written evaluation of the Superintendent stands on a different footing. The Board was considering making Mr. Superintendent’s evaluation public. However, under current law all documents relating to the evaluation of the superintendent are already public documents. Board members should know that any written information about the performance of the superintendent is subject to public disclosure. That includes the evaluation itself, forms filled out by individual board members to provide input for a general rating. It even includes emails between individual board members commenting on the performance of the superintendent or any other school employee. Board members must be circumspect before creating any such public records.

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