School Superintendents and Executive Session: A Cautionary Tale About the FOIA

On May 22, 2024, the Connecticut Freedom of Information Commission affirmed a Proposed Decision of a Hearing Officer holding that the Hampton Board of Education violated the FOIA by permitting its Superintendent to be present during an executive session in which she did not speak.  This restrictive reading of Conn. Gen. Stat. § 1-231(a) is deeply problematic, and school boards and their superintendents should take care to avoid a similar finding when superintendents participate in executive session.

Conn. Gen. Stat. § 1-231(a) is only one sentence long, and it provides in relevant part:

(a) At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion . . . .

In Arriola v. Chairman, Board of Education, Hampton Public Schools, Docket FIC#2023-0356 (May 22, 2024), a member of the Board of Education objected when the Board permitted the Superintendent to attend an executive session discussion concerning a pending CHRO complaint.  The decision to do so was reasonable because she had been serving as liaison between the Board of Education and insurance counsel and had participated in executive session discussion of that complaint on two prior occasions.  However, the Superintendent did not contribute to the discussion that day, and with the benefit of hindsight, the Hearing Officer found that the respondent Hampton Board of Education violated the FOIC by including the Superintendent in that executive session discussion because, she found, the Superintendent’s presence was not limited to the time when her “testimony or opinion” was “necessary.”

Before considering this Proposed Decision on May 22, the Commission granted CABE and CAPSS amicus status, permitting Shipman & Goodwin to file an amicus brief and make oral argument on their behalf.  We objected to the Proposed Decision as impractical and unworkable, given the statutory authority of the superintendent as chief executive officer of the board of education.  Indeed, it is hard to imagine a topic privileged to executive session (e.g., pending claims, a personnel matter, a confidential student matter) in which a board of education would not need the “testimony or opinion” of its superintendent.

These excellent arguments notwithstanding, the Commission unanimously affirmed the Hearing Officer decision.  Because a superintendent is not a “member” of the board of education, the Commission ruled, Section 1-231(a) applies to restrict the attendance of a school superintendent to the time when the superintendent’s testimony or opinion is necessary.  Some members of the Commission expressed sympathy for the practical problems caused by this restrictive reading of the law, but they observed that a “fix,” if any, should come from a change in the law by the legislature.  CABE and CAPSS will be pursuing a legislative change, but in the meantime, we make the following recommendations.

• First, boards of education must state the reason for the executive session when they vote to convene in executive session. When they do so, board members must be sure to invite the superintendent formally into the executive session (and to so indicate in the meeting minutes) except for the rare circumstances when the superintendent’s presence in executive session is not required (such as when the superintendent’s own employment is being discussed).  Allowing the superintendent into executive session without explicitly inviting the superintendent to do so would be a per se violation of the FOIA.
• Second, if a board member objects to inviting the superintendent into an executive session during the discussion of a particular topic, the board must give the matter serious consideration. If the board of education decides to invite the superintendent to participate in the executive session despite the objection, the board should vote formally on the question, and the discussion and vote should identify why a majority of the board members consider the testimony or opinion of the superintendent on a particular topic to be necessary.
• Third, make sure that the superintendent participates in the discussion to demonstrate the necessity of including the superintendent in the discussion. In the Hampton Public Schools case, the Superintendent did not speak.  We argued to the Commission that board members would have to be clairvoyant to know for sure whether the superintendent would need to offer testimony or opinion to the board of education in a particular executive session discussion, but the Commission was unmoved.  Given that practical problem, boards of education and their superintendents should make sure that the superintendent does comment in all executive session discussions in which he or she is included.