SEE YOU IN COURT - April 2019

The members of the Nutmeg Board of Education want to do what they can to improve student achievement in Nutmeg, which has been lagging in comparison to neighboring towns. The problem has been that there is no money for new programs or for hiring additional staff members. But after a “workshop” last week, the Board members came up with a way for the Board to encourage students to study harder and improve their performance at no cost to the school district.

At the conclusion of the discussion, veteran Board member Bob Bombast stated, “In Nutmeg, we are proud of our student athletes, and we want to be even prouder of them. So I propose that our student athletes at the high school must maintain a B average to be eligible to participate in extracurricular activities, starting next year. We know that our student athletes have the capacity to become ‘scholar athletes!’” The other board members chimed in, gushing about how great it will be for student athletes to up their game academically. Mr. Chairperson then invited Bob to present the motion. With no further debate, the Board voted unanimously that, starting in 2019-2020, Nutmeg students will have to carry a regular load of five classes and maintain a B average in their courses to be able to participate in extracurricular activities.

The initial public reaction was surprisingly positive, and the Nutmeg Bugle published an editorial congratulating the Nutmeg Board of Education on its creativity. However, the Nutmeg Boosters expressed opposition to the new policy, and Coach Rock even tweeted that the Board would only implement this new policy “over my dead body.”

Bob Bombast was incensed to read of Coach Rock’s opposition to the policy, and he tweeted back at Coach Rock, “No loser coach will tell the Board what to do.” Soon, battle lines were drawn on social media. The Nutmeg Boosters declared that the new Board policy was illegal because, as a member of CIAC, Nutmeg was bound to following the CIAC eligibility rules, which do not require that student athletes maintain a B average. Bob shot back on Facebook, calling the Boosters’ claims nonsense. Bob also pointedly warned Cock Rock in a series of tweets that he had better either get with the program or find himself another job.

Concerned over this continued controversy, Mr. Chairperson called a special meeting, posting it for “Discussion regarding employee insubordination,” and he asked Mr. Board Attorney to provide a legal opinion on next steps, which Mr. Board Attorney promptly provided.

The room was packed with supporters of Coach Rock. Nonetheless, after calling the meeting to order, Mr. Chairperson convened the Board into executive session for the purpose of discussing Mr. Board Attorney’s legal opinion on next steps. Coach Rock was irate at this turn of events. “I am warning you,” he shouted as the Board members cleared the room for the executive session. “You better not be discussing me. I demand that you do that in public!”

Can the Board have an executive session discussion of Coach Rock and his part in the controversy over higher standards for participating in extracurricular activities?

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The Nutmeg Board of Education may have that discussion about Coach Rock’s insubordination in executive session. It is well known that a public agency may discuss “the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee” in executive session provided that the public officer or employee being discussed is notified in advance so that he or she may exercise his/her right to require that the discussion be held in open session. However, there are other reasons for which a public agency (such as a board of education) may be in executive session, and the performance of an employee may come up in such discussions.

Here, the Board was properly in executive session to consider Mr. Board Attorney’s legal advice on “employee insubordination,” including next steps. The Freedom of Information Act provides that public agencies can convene into executive session when the discussion would reveal information contained in confidential documents. Here, the category of confidential records under discussion is “communications privileged by the attorney-client relationship,” and the Board had every right to discuss the legal advice from Mr. Board Attorney in executive session.

In conducting such discussions of legal advice in executive session, public agencies must keep three things in mind. First, such legal advice must be in writing. Second, when stating the reason for convening into executive session, the public agency must now state the topic of the legal advice. Finally, public agencies must be vigilant to limit such executive session to the legal advice under discussion, and not to use the executive session to have a more far-reaching discussion about the facts.

We note that the Board has the right to establish reasonable eligibility criteria for participation in extracurricular activities. By definition, such activities are not part of the curriculum that school districts must provide to their students, and the courts have ruled that participation in extracurricular activities is a privilege. Accordingly, the Nutmeg Board of Education can establish criteria for participation as it may reasonably determine, even if such criteria are more rigorous than those adopted by CIAC.

Given that the policy change was perfectly legal, Coach Rock is treading on thin ice in joining with the Nutmeg Boosters to oppose the Board’s new policy. “Insubordination” is commonly defined as willful defiance of a legitimate directive, and Coach Rock is threatening to do just that. Coach Rock better agree to implement the new policy or he faces termination. Conn. Gen. Stat. § 10-222e gives the right to coaches who have completed three years of service to receive notification within ninety days after the season ends if their contract is to be terminated. However, the statute also provides that a coach’s employment may be terminated at any time (subject to a hearing if requested) “for reasons of moral misconduct, insubordination or a violation of the rules of the board of education, or (2) because a sport has been cancelled by the board of education.”

Finally, we note that the Board adopted this new policy at a “workshop” meeting. The term “workshop” is not used in the Freedom of Information Act, and any board of education meetings will perforce be a “regular meeting,” a “special meeting,” or an “emergency meeting.” If a meeting is designated as a “workshop,” it is a special meeting, and as with any other special meeting under the FOIA, the board of education must specify the business to be conducted in the posting of the meeting, and the board may not add items to the agenda at the meeting. Whether the Nutmeg Board of Education complied with these requirements here will depend upon when it posted the meeting and whether the posting included reference to this policy change.