SEE YOU IN COURT - May 2021

Given the fixed costs for negotiated salary increases, higher insurance costs, and much higher projected fuel oil costs, the members of the Nutmeg Board of Education were proud to submit a 2021-2022 budget proposal to the Nutmeg Board of Finance with an increase of only 3.5%.  They were concerned, however, because Seymour Dollars, the irascible and long-serving chair of the Board of Finance, had publicly announced that he would be voting against any budget increases this year. 

Hoping that a show of strength would be helpful, all the members of the Board of Education attended the meeting when the Board of Finance took action on the Board of Education budget.  True to his word, however, Seymour voted against the Board’s proposed budget, and he reiterated his position that “zero” is the only acceptable number for the 2021-2022 Board of Education budget increase.  By contrast, the other members of the Board of Finance were more realistic, and through further discussion (and over Seymour’s objection), its reductions to the Board of Education budget resulted in an increase of some 2%.

The Town of Nutmeg finalized the 2021-2022 budget based on the recommendation of the Board of Finance, and the Board of Education scheduled a meeting to revise its budget for the year to conform with the appropriation.  At that meeting, veteran Board member Bob Bombast ranted against the actions of the Board of Finance, and he insisted that the Board of Education should not let Seymour Dollars and the Board of Finance push it around.  He urged his fellow Board members to stand firm and not make any changes to its budget.  “If we need the money we have budgeted for, we will just have to ask the Board of Finance for a supplemental appropriation next spring.” But Board member Penny Pincher brought the Board members back to earth with the observation that a failure to prepare a proper budget could result in some sort of personal liability if the Town did not come through with a supplemental appropriation. 

Then Bob Bombast moved that the Board go into executive session to discuss “personnel matters.”  The other Board members had no idea why they would be discussing personnel matters, but they did like the idea of an executive session.  Accordingly, they voted unanimously to go into executive session, for the purpose as Bob stated.

Once the Board was in executive session, Bob explained.  “We should figure out what cuts to make now.  It would be terrible if some loyal Board employee reads in the newspaper that his job was eliminated before Mr. Superintendent could even give him the heads-up.”

The other Board members agreed, and they started discussing potential budget reductions.  They identified reductions in equipment and supplies as well as specific positions to cut.  Bob took notes and read them back to assure that all the Board members were on the same page.  The Board reconvened in open session, and Bob read from those notes to make a motion.  With the announced goal of reducing the budget by 2%, Bob’s motion included the specific cuts unrelated to personnel, but it just listed the dollar amounts of “personnel reductions.”  The motion passed unanimously.

After the meeting, Nancy Newshound, reporter for the Nutmeg Bugle, asked Bob who the “personnel” being discussed were, and she asked for a copy of whatever Bob was reading from.  Bob told her to mind her own business and that he would not be sharing his personal notes with her.

Can Nancy get a copy of Bob’s notes?  Was the executive session appropriate?

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To start with, by going along with Bob’s proposal for executive session, the Board violated the Freedom of Information Act in various ways.  The applicable executive session privilege is to discuss the “appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting . . . .”  Conn. Gen. Stat. § 1-200(6)(A).  This statutory language makes clear that the “personnel” reason for executive session must relate to the discussion of one or more individual employees or public officers (which includes board of education members); the law contemplates that public agencies must provide notice to such individual employees or officers before any such discussion so that he or she may exercise his or her right to require that the discussion as to him be held only in open session.  It was thus improper for the Board to discuss staffing and position eliminations in executive session.

To make matters worse, the Board failed appropriately to state the reason for the executive session.  The Freedom of Information Commission has held repeatedly that the public has the right to know of the nature of any personnel discussion in executive session and that simply stating “personnel matters” as the reason for the executive session violates the law.  It can be a challenge, of course, to strike the correct balance between apprising the public of the nature of the personnel discussion and maintaining the confidentiality that the executive session is intended to preserve.  But citing “personnel matters” as the reason for executive session discussion will not pass muster if ever challenged.

Bob’s taking notes in executive session raised another FOIA issue.  Recorded information about a topic privileged to confidential discussion in executive session may be subject to public disclosure because the rules governing executive session and the rules about what records are confidential are governed by different statutes.  Boards of education can discuss the evaluation of the superintendent confidentially in executive session, for example, but any recorded information on the same subject is subject to public disclosure.

Accordingly, the fact that Bob took these notes in executive session is irrelevant.  Rather, the status of the notes Bob took in executive session will depend upon whether they are considered personal notes.  Personal notes that a public official takes in the course of his or her duties can be considered “preliminary drafts or notes,” which are exempt from disclosure under the FOIA.  Conn. Gen. Stat. § 1-210(b)(1).  However, after Bob read from the notes, first in executive session and then in the public board meeting, he lost the ability to claim that these notes remain “preliminary drafts or notes” exempt from disclosure under the FOIA.

Finally, we note that all the Board members attended the meeting of the Nutmeg Board of Finance.  Normally any convening of a quorum of a multi-member public agency must be posted, as when board members are all invited to a community event at which a quorum may be discussing board business.  However, the FOIA contemplates that members of one public agency may attend a properly posted meeting of another public agency without posting the meeting.  Conn. Gen. Stat. § 1-200(2).  In relying on this exception, it is important not to let the meeting morph beyond what was posted.  For example, if a quorum of a board of education attends a meeting of the policy committee, those board members not on the committee must be treated as any other members of the public, and should not be afforded special privileges as to speaking or even where to sit.