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SEE YOU IN COURT! - October 2013

CABE Journal

October 2013

Setting the school calendar has been a problem for the Nutmeg Board of Education. Two years ago, it proposed to eliminate February vacation from the school calendar in 2012-2013. But the Nutmeg Union of Teachers (NUTS) went crazy, arguing that such action would violate their rights. Mal Content, long-serving President of NUTS, claimed that the February vacation is a time-honored therapeutic tradition in Nutmeg, and he threatened that any change to the February vacation would be an illegal unilateral change in working conditions. So the Board relented, and it left the vacation in the school calendar.

As fate would have it, in October that year, Superstorm Sandy hammered the Nutmeg Public Schools hard. For eight days, district schools were closed, and with several more snow days before and after February vacation, there was real drama over whether the Nutmeg Public Schools would be able to hold school for the required 180 days before June 30. Fortunately, with the coming of spring, Mother Nature finally cooperated, and the district squeaked by, holding the last day of school on June 27.

This year, Bob Bombast, veteran member of the Nutmeg Board of Education, has made it his personal crusade to make sure that the school calendar would never be a problem again. After getting his ducks in a row with a series of one-on-one meetings with his fellow Board members, Bob proposed in open session that the school calendar for this year be amended to eliminate February vacation. Given Bob’s politicking, there was little need for discussion, and the Board promptly passed Bob’s motion unanimously. Then the fun began.

Mal Content was in high dudgeon about this change in the school calendar. During public participation at the next Board meeting, Mal threatened to file an unfair labor practice charge against the Board for its unilateral changes in the school calendar. Next came a gaggle of parents who, one after one, explained in agonizing detail how important family vacations are. Some of them even threatened to sue the Board members for the non-refundable deposits they had made on vacation packages scheduled during the days on which February was originally scheduled.

Bob ignored Mal and the parents as they were talking, preferring instead to text friends on his cell phone. But the other Board members were intimidated by the vehement protests, and after the twelfth parent complaint, Penny Pincher asked to be recognized. “Mr. Chairman, I think that we were too hasty. I move that we rescind our prior action and restore February vacation.” Red Cent quickly seconded the motion, which Mr. Chairperson promptly put to a vote without discussion. Bob couldn’t believe his ears when Mr. Chairman announced that the motion passed 4 to 1.

What should the Nutmeg Board of Education learn about the school calendar?

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Before we get to that, there are a number of other issues to consider here. First, Bob’s politicking may have been a violation of the Freedom of Information Act. The question is whether Bob shared Board members’ perspectives with other Board member in his various meetings so as to be a discussion among a quorum of the Board.

Penny’s motion raises another FOIA issue. At regular meetings, a public agency can add an item to the agenda by a two-thirds vote. Here, however, Penny made a new motion without any vote to place it on the agenda. In addition, Penny’s motion raised an issue under Robert’s Rules of Order. The Board had already taken action in amending the calendar, and Penny’s motion should thus properly be considered a motion to rescind or amend. In contrast to a motion to reconsider (which can only be made at the same meeting by a member who had voted with the majority), a motion to rescind or amend can be made by any member, but there are still special rules. When a body wants to revisit action previously taken, the proposed action must be set forth specifically on the agenda. If it is not, the action must be passed by either a two-thirds vote or by an absolute majority of the body to guard against timing such action to thwart the will of the majority.

Mal Content claimed on behalf of NUTS that the Board could not eliminate February vacation, but he was wrong. The Teacher Negotiation Act provides that the length and scheduling of the student school day or student school year are not mandatory subjects of bargaining. However, the union may have had a claim concerning the impact of the late cancellation of February vacation for the current year. When an employer exercises the right to act unilaterally, it may still be obligated to negotiate over the impact of its action. For example, if a board of education adds a day to the school year, it must negotiate over pay for the additional day. Similarly, if a district has not reserved the right to change the calendar because of weather and other unanticipated events (as many districts do and should), it may have to negotiate over the impact of late changes to the school calendar.

The broad discretion vested in boards of education to set the school calendar may soon be lost. In Public Act 13-247, Sections 321-324, the General Assembly has adopted a procedure whereby school districts will be required to use a uniform school calendar by region, starting in 2015-2016. Specifically, this Public Act established a “Uniform Regional School Calendar Task Force,” which is responsible for adopting “guidelines for a uniform regional school calendar [that] shall include, but not be limited to, (1) at least one hundred eighty days of actual school sessions during each school year, (2) a uniform start date, (3) uniform days for professional development and in-service training for certified employees, pursuant to sections 10-148a and 10-220a of the general statutes, and (4) not more than three uniform school vacation periods during each school year, not more than two of which shall be a one week school vacation period and one of which shall be during the summer.” The Task Force, which includes a CABE representative appointed by its Executive Director, is required to adopt and submit such guidelines to the General Assembly and to the various regional educational service centers by January 1, 2014.

Each regional educational service center is then required to develop a regional school calendar and submit it to the State Board of Education for approval by April 1, 2014. Such school calendars must be consistent with the guidelines developed by the Task Force, as described above. This new law provides that boards of education “may adopt” the uniform school calendar for 2014-2015, and boards of education “shall use” the uniform calendar in 2015-2016. Is there a difference between “adopt” and “use”? Stay tuned.

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