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SEE YOU IN COURT! - October 2015

CABE Journal

October 2015

Authors: Thomas B. Mooney

Bob Bombast, veteran member of the Nutmeg Board of Education, has been vocal in his opposition to state testing based on the Common Core State Standards.  When Mr. Superintendent reported last month on the poor test results from last year, Bob was in classic form, accusing the State Department of Education of subordinating local control of education to corporate interests.  Bob told the Board and the public that it is imperative that the Board do something, anything, to deal with this problem, and he promised to have a plan at the next meeting.  Since that time, Bob has been conferring with several fellow Board members by email and in person, and by the time the Board met again yesterday, Bob was ready with his plan.

At the meeting last evening, Bob took action when the Board got to the New Business portion of its meeting.  After the Board had addressed its agenda items listed under New Business, Bob raised his hand and asked to be recognized.

“Mr. Chairperson, members of the Board,” Bob intoned.  “I am deeply concerned that the Board of Education is being deprived of its rightful oversight role on matters of curriculum.  I move that the Board appoint three Board members and three parents to a new select committee to oversee all issues of curriculum.  These matters are far too important to be left to the purported experts.  I will be pleased to serve on and, of course, chair this committee.  We need to give control of the curriculum back to the people.”

Mr. Superintendent quickly explained to Bob that by statute curriculum matters are already handled by a committee that the Board appoints.  Mr. Superintendent also told Bob that Board members can even sit in on the committee meetings if they want.

Bob was undeterred by Mr. Superintendent’s comments.  “If we appointed that committee, we can certainly unappoint that committee,” Bob responded curtly.  “I amend my motion to provide that any such committee is hereby disbanded and that its responsibilities will now be handled by my new “Board/Parent Select Committee on Curriculum.”  Fellow-traveller and Board member Mal Content jumped in, and he promptly seconded Bob’s motion.

Mr. Chairperson had not been included on the emails that Bob and Mal had exchanged over the weekend, and he was thus surprised by this move by Bob and Mal.  He didn’t quite know what to do with Bob’s motion, however, so he simply noted that a motion had been made and seconded, and he asked if there were any discussion.  Given that Bob, Mal and other Board members had already figured out their strategy, they had no further comment on Bob’s proposed new committee.

With no other good option, Mr. Chairperson asked for a vote on Bob’s motion, and it passed unanimously, with Mr. Chairperson abstaining.

Do you have any concerns about Bob’s motion and the new committee?

*        *        *

There are a number of concerns.  First, as a legal matter, such a Board/Parent committee seems ill-suited to fulfill the important statutory responsibility of establishing curriculum for the Nutmeg Public Schools.  Connecticut General Statutes, Section 10-220(e) provides:

(e) Each local and regional board of education shall establish a school district curriculum committee. The committee shall recommend, develop, review and approve all curriculum for the local or regional school district.

As we see, the responsibilities of this committee are extensive, and indeed the wording of the statute does not clearly define the role for the board of education other than its duty to appoint the committee.  Interestingly, the statute does not specify the membership of this committee, and thus theoretically the Board could appoint itself and parents to such a committee.  However, given the important responsibilities of this committee to “recommend, develop, review and approve all curriculum,” it is important that professionals with appropriate expertise serve on this committee.

Second, a board of education can still reserve to itself an oversight role in matters of curriculum.  The statute provides that the same committee recommends, develops, reviews and approves curriculum.  Given that a board of education appoints the curriculum committee, it appears that the board can reserve to itself the right to receive and act on the committee’s recommendations and approvals.  However, given the committee’s broad responsibilities under statute, board members should not act independently if they disagree with the actions of the committee.  Rather, boards of education should either approve the curriculum committee’s recommendations or refer the matter back to the committee for further deliberations.

This scenario also presents a number of freedom of information issues, starting with the fact that Bob’s motion was not even on the agenda.  As to the committee itself, if it is composed exclusively of staff members appointed by the superintendent (acting as the chief executive officer of the board of education), it is possible that its meetings may be considered “administrative or staff meetings,” which are exempt from FOIA meeting requirements.  However, if Board members or parents sit on the committee, these meeting will be subject to all FOIA requirements.

Significantly, boards of education must be aware that any committee they appoint will be considered a public agency, even if the committee appointed is composed solely of parents or other non-elected town residents.  It is therefore important that boards of education provide appropriate training to persons serving on such committees so that they can provide such service to their communities and still comply with their legal responsibilities under the Freedom of Information Act, e.g., to post their meetings, to provide the public access to those meetings, to record their votes, and to maintain minutes of their meetings.

Bob’s emails between meetings also raise FOIA concerns.  As a starting premise, Bob’s emails about his plans for such a committee are clearly public records.  The larger question is whether the emails back and forth between Board and selected colleagues constituted a “discussion” among a quorum and thus a “meeting.”  A “discussion” for this purpose may be defined as an exchange of information and views among members of the public agency on matters within its jurisdiction.  If a quorum of the Nutmeg Board of Education conducted such a “discussion” by email here, those emails would be considered a “meeting” in violation of the FOIA, in that the “meeting” was neither posted nor open to the public.

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