SEE YOU IN COURT - December 2018

As the holiday break grows near, the members of the Nutmeg Board of Education have been on their best behavior, almost mellow in tone, dutifully moving through the agenda for each meeting.  Things changed at the meeting last week, however, when veteran Board member Bob Bombast moved to add an item to the agenda:  Investigation into Unauthorized Trip.  Fellow Board member Mal Content was intrigued, and he seconded the motion without knowing what Bob was planning.  Now everyone was curious, and the Board voted unanimously to add the item to the agenda.

“What on earth are you talking about, Bob?” asked Mr. Chairperson.

“I heard from reliable sources,” responded Bob, “that the Nutmeg Concert Band is going to Europe over the holiday break.  I want to know who authorized this trip, because I know that the Board certainly did not.” 

Mr. Superintendent was only too happy to respond.  “I did.  As you recall, the Board authorized a similar trip last year.  And the year before that.  And the year before that.  Given that past practice, I figured that I would just save you all the trouble, and I approved the trip.  The Band Director got a great deal on the tickets, and the venues are all set.  Do you have any other questions?”

“I certainly do,” Bob responded with a steely tone.  “How dare you approve this trip on your own?  This is Board business!”

Fearing an argument, Mr. Chairperson suggested that Bob and Mr. Superintendent continue their discussion in executive session.  However, Bob carried on.  “What about liability?” Bob asked.  “How can you let our students go on an unapproved trip?  I can’t imagine that our insurance would cover that!”

At this point, the other Board members grew concerned about Bob’s diatribe, and Penny Pincher texted Mal Content, asking him to do something.  However, Mal texted back that he shared Bob’s concern about the field trip, and he went on to express his own concerns about Mr. Superintendent’s “lack of respect” for the Board.  Before Penny could text back, however, local reporter Nancy Newshound from the Nutmeg Bugle interrupted the meeting.  “Point of order,” she shouted out.  “I see Board members texting each other.  This is an outrageous violation of the Freedom of Information Act, and I will be filing a complaint with the FOIC.”

Mal quickly put away his cellphone, but Penny responded angrily to Nancy.  “My texts on my personal cell phone are no business of yours!”

Mr. Chairperson ruled both Penny and Nancy out of order, stating that the question of texts was not in the agenda and should not be the subject of discussion.  But Nancy got in one more shot:  “You are on notice that I will be making an FOIA requests for those texts tomorrow morning, and you had better not delete them.  Understood?”  Mal understood all too well, and as soon as he got home, he deleted the text messages, figuring that they were just texts that he did not have to keep. 

The next morning Nancy made good on her threat, submitting a written request for all Board member text messages sent by and between the Board members, both during the meeting and afterwards.

Was it OK for Mal to delete his texts about Mr. Superintendent?

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In a word – no.  Under the Freedom of Information Act, “public records” include all recorded information relating to the public’s business.  The texts that Mal sent, of course, related to Board business, i.e., Mal’s view of Mr. Superintendent’s actions in approving the field trip, and as such, were public records.  To be sure, there is no general record retention schedule for text messages, and the nature of the message will determine whether and for how long it should be retained (e.g., was the text an official communication akin to correspondence, or a transitory communication similar to a telephone conversation?).  Here, Mal could have deleted these text messages in the normal course, because they were transitory communications.  However, once Nancy told Mal that she was seeking copies of the text messages, Mal was on notice of her request and should not have deleted the text messages.

The question of texting at Board meetings raises another issue under the FOIA.  Meetings of public agencies are required to be held in public to give interested people access to the deliberations of public officials.  We know intuitively that members of a public agency cannot whisper during their public discussion to prevent observers from hearing their comments.  Communications by text by members of a public agency during a public meeting similarly denies the public access to the communications between and among the Board members.  Instead of texting Penny to express concerns about Mr. Superintendent, Mal should have expressed himself verbally so that all Board members and persons attending the meeting could hear what he had to say.  By communicating privately with Penny by text, Mal arguably violated the FOIA. 

This whole situation started with Bob’s upset that Mr. Superintendent had approved an international band trip on his own.  In such matters, we must separate legal considerations from the practical considerations that should guide the Board/Superintendent relationship.  As a legal matter, Mr. Superintendent had every right to approve the trip.  Under Conn. Gen. Stat. § 10-157, Mr. Superintendent is the “chief executive officer” of the Board of Education.  As CEO, superintendents have expansive authority to make decisions, and that would certainly include approving a band trip.  However, board of education members have important oversight responsibilities, and through conversation and setting policy, boards of education and superintendents should develop a clear understanding of their respective responsibilities.  Here, Mr. Superintendent should have discussed this matter with the Board members before he changed the practice and approved the trip without Board approval.

Finally, we note that Mr. Chairperson suggested that Bob continue his conversation (or, better said, argument) with Mr. Superintendent in executive session.  Executive session is permitted for the discussion of the “appointment, employment, performance, evaluation, health or dismissal of a public officer or employee.”  A general discussion of the respective roles and responsibilities of the Board and Superintendent is more appropriate to open session, but the specific concerns here -- whether Mr. Superintendent overstepped in approving the trip -- could appropriately have been discussed in executive session as a matter relating to the Superintendent’s “performance” and “evaluation.”