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SEE YOU IN COURT! - September 2015

CABE Journal

September 2015

Authors: Thomas B. Mooney

The members of the Nutmeg Board of Education are a conscientious group, and they want to know everything about the operation of the Nutmeg Public Schools.  For his part, Mr. Superintendent has tried to keep up with their questions, but it seems that his updates simply whet the appetites of the Board members for more information.  Moreover, whenever Mr. Superintendent provides one Board member information in response to his or her questions, other Board members invariably find out and ask for the same the information as well.

Given the Board member’s hunger for information, Mr. Superintendent decided to formalize a process for keeping Board members in the loop.  First, he beefed up the Board packet so that Board members now receive a great deal of back-up information before each Board meeting.  Second, he added a question-and-answer session to the agenda of each meeting, providing each Board member the opportunity to ask whatever he or she wants about the Nutmeg Public Schools.  Given confidentiality concerns, however, Mr. Superintendent sends the supplementary information in a confidential envelope, and each of the Q and A sessions are held in executive session.

These actions were a big help in quieting down the Board members, and Mr. Superintendent thought that he had resolved their concerns.  However, veteran Board member Bob Bombast continued to complain quietly in emails to fellow Board members about Mr. Superintendent’s “secretive” ways.

Things came to a head when Bob made an offhand remark to Nancy Newshound, veteran reporter for the Nutmeg Bugle Dot Com, the “online source for Nutmeg news,” about how hard it was for him to get information out of Mr. Superintendent.  Nancy’s eyes lit up, and she promptly filed an FOIA request for all emails that Bob sent to his colleagues.  In response, Nancy received a number of emails in which Bob expressed his frustration with Mr. Superintendent.  When Nancy followed up with Bob, he was embarrassed by his emails, and had no further comment.  But the whole question of secrecy got Nancy thinking, and she wrote a comprehensive FOIA request of Mr. Superintendent, asking for all records concerning disciplinary action taken against any school district employee in the preceding twelve months.

Mr. Superintendent groaned when he received the request, and in checking with Ms. Board Attorney, he learned that these personnel records were not exempt.  Fortunately, it has been fairly quiet in Nutmeg during the last year, and there was only one case of discipline, the records of which he now had to share with Nancy.  In that case, Nora Naïve, a third-grade teacher, had posted several pictures on her Facebook page of “hunky” men, adding her own commentary, such as “break me off a piece of that.”  For her poor judgment, her principal gave Nora a written reprimand letter, which Nancy obtained through her FOIA request.

Nancy was quick to call each of the Board members to talk about Nora’s conduct, asking them if the teacher should have been suspended or fired for her posts.  To their credit, the Board members did not respond to Nancy immediately, but some felt that they had to say something, given their role in overseeing district operations.

What should they say?

*        *        *

If Board members wish to respond at all, Nancy has given them an excellent opportunity to explain that operational issues, including employee discipline, are the responsibility of the superintendent, not that of individual board members.  It can be hard not to comment on personnel matters, especially when prodded by a persistent reporter.  However, board members must remember the limited role that they can have in such matters – acting as an impartial judge.  Playing that out here, for example, if a Board member were to comment that Nora should have been suspended, that Board member may have to recuse him- or herself from the case if later Nora is recommended for contract termination for continued poor judgment.  Having made those previous comments, the Board member would be hard-pressed to claim he is impartial.

More generally, the struggle in Nutmeg to determine what information board members need to receive is typical of school districts throughout the state.  Conscientious board members exercise an oversight role, and to do so, they want and need information about district operations.  To be sure, some information is confidential and may not be shared.  When a problem with a teacher could proceed to termination, board members should not receive related information, as discussed above.  Similarly, personally-identifiable student information is confidential under FERPA and may not shared unless board members need that information to do their jobs (as is the case, for example, in an expulsion hearing).  However, board members are otherwise generally entitled to information about district operations, and boards and superintendents should work together to develop appropriate procedures to assure that board members receive information necessary to fulfill their important oversight role.

Mr. Superintendent’s efforts here were well-intentioned, but problematic.  Providing more information in the Board packet was fine, but it would usually not be confidential.  The Freedom of Information Act permits school officials to maintain records as confidential only when there is a specific FOIA provision so permitting, and the material in the Board packet, for example, is all subject to public disclosure unless there is a provision in the FOIA exempting specific information from disclosure.  Similarly, the Q and A sessions in Nutmeg were not properly the subject of executive session except to the extent that discussion of an individual question would be so privileged.  Moreover, other than a quick response to a question, board discussion of district issues during a Q and A session could also violate the posting provisions of the FOIA.  The agenda must fairly apprise the public of the business the board will be conducting, and a lengthy discussion of a district matter without identifying that matter on the agenda other than by “Q+A” would violate that requirement.

Finally, in responding to Board member questions, Mr. Superintendent made a key mistake.  Whenever one board member asks for information, it should go to all board members.  No individual board member should be favored with special information.  All board members have the same oversight duty, and all board members should have access to the same information to fulfill that responsibility.

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