SEE YOU IN COURT - August 2020

The mood was tense before the meeting of the Nutmeg Board of Education last week.  The posted agenda included an item that had everyone on edge: “Discussion of District School Reopening Plan.”  The members of the Nutmeg Union of Teachers were out in force, and the room was packed.  Mr. Superintendent had kept his cards close to the vest, and his School Reopening Task Force (composed of staff and parents) had been meeting behind closed doors.  Even the members of the Nutmeg Board of Education were clueless as to what was coming.  This meeting was the “big reveal.”

When Ms. Chairperson called the meeting to order, she got right to the point.  “Mr. Superintendent, we are all very curious about the plan to reopen school in the fall.  Please present your report first.  Like right now!”

Mr. Superintendent launched right into his description of the plan.  To start, he explained that parents will be responsible for student transportation to and from school unless they really “push” for district-provided transportation, observing that running near-empty school buses will be great for social distancing.  Mr. Superintendent then went on.  “All students will be expected to come to school five days a week unless they have a doctor’s note.  For those students, and for those students only, the district will assign teachers to provide remote instruction.  Other students whose parents elect the option to keep them home temporarily will largely be on their own, but they will be able to tune in on the ‘robust’ offerings of instruction that will be available online.”

Veteran Board member Bob Bombast couldn’t wait any longer, and he interrupted Mr. Superintendent.  “What about the teachers?  Some of them have emailed me, telling me that they are scared to come back to school.”

“We have listened to those concerns,” Mr. Superintendent responded, “but we have schools to run!  We can accommodate some of our teachers, but not all of them.  And don’t get me started on the Nutmeg Union of Teachers!  If it were up to the Union, we would be closed and tied up with negotiations until next year.”

Bob Bombast pushed back.  “Before I could ever vote in favor of this plan, I need a lot more information.  Do we really plan to bring everyone back?”

Board member Mal Content piped up.  “I need more information too!  I don’t want to be sued, and if we don’t do this right, we will be in court over this!”

“Actually, Board members do not have to worry about voting,” Mr. Superintendent reassured them.  “I am responsible for operational issues, and I am just giving you Board members and the assembled public a courtesy overview of my plan.”

“Hold on a minute!” Bob interjected.  “If anyone is going to approve this plan, it will be Nutmeg Board of Education, and only after thorough discussion, of course.”

At that point, Mr. Superintendent had to confess.  “The plan was due to the State Department of Education by July 24, and I kind of already filed it last week.  If you have any serious problems once we go through the Plan, I suppose we can file an amendment.  But I think that our crackerjack Task Force covered all the bases.”

What is the Board’s role here?

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In general, operational issues are the responsibility of the superintendent, who is by statute the chief executive officer of the board of education.  CABE and CAPSS have issued helpful guidance in this regard.  CABE/CAPSS School Governance Position Statement (June 2016).  The key to reconciling the board members’ oversight role with the operational responsibilities of the superintendent is good communication.  Mr. Superintendent has the legal authority to develop and file the plan with the State without Board action.  However, he should have kept the Board informed and involved during the planning process.  Among other things, implementing the plan will involve decisions as to resource allocation, a basic responsibility for the board of education.

Mr. Superintendent’s secretive approach also created an FOIA problem.  His School Reopening Task Force included parents and, as such, its meetings were not exempt from FOIA rules as an “administrative or staff meeting.”  Accordingly, the meetings of the Task Force should have been posted and been open to the public. 

The unions representing Nutmeg Public Schools employees have a right to request negotiations concerning the reopening plan, but only at the right time and to a limited degree.  Specifically, unions have the right to request negotiations when there is a significant change in working conditions.  In considering such matters, it is important to differentiate between decisional bargaining (whether a particular action will be taken) and impact bargaining (how that action will be accomplished).  In devising reopening plans, school districts will be making significant decisions about district operations, including modality of instruction and where and how that instruction will occur.  Decisions as to the instructional program (e.g., how much teaching will be synchronous) are management decisions, and such basic decisions are not subject to collective bargaining.  The impact of such decisions, however, is subject to negotiations under a timeline, including mediation and arbitration, if necessary.

Mal appropriately raised liability concerns because safety of students and staff is of paramount concern.  However, it is important to keep such concerns in perspective.  First, any such liability would not be personal.  By statute, board members and school employees who act within the scope of their responsibilities are indemnified against personal liability if and when claims are made.  Moreover, the school district itself may have governmental immunity from liability, but not always.  In some cases, liability may be imposed if school personnel do not follow established standards and someone is harmed as a result.  In establishing safety procedures and protocols, therefore, district officials must be realistic and adopt procedures that are practical and will be followed.

Finally, transportation is the legal obligation of the school district when it is reasonable and necessary, and districts should not force parents to “push” the issue.  Nonetheless, school districts can and should survey parents to see whether they wish to provide transportation for their children to and from school during this challenging time.  Districts should plan transportation based on accurate numbers, but flexibility is key. While districts can require reasonable advance notice (a week?), parents reserve the right to change their minds and look again to the district to provide transportation.