See You In Court - December 2023

Gary Gadfly moved with his family to Nutmeg two years ago, and ever since then he has made his presence known with emails and complaints.  First, he started a Change.org petition to protest the Board’s “pay for play” policy, which requires parents to pay fees for their children to participate in certain sports.  Then, he filed complaints with the Freedom of Information Commission alleging that the agendas the Board was posting for its meetings were not sufficiently specific.  Gary was not successful with either challenge, but he remained vigilant in looking for some trouble to make for the Nutmeg Board of Education.

Gary did not have to wait long.  At the regular Board meeting last month, veteran Board member Bob Bombast moved to add a new item to the agenda, namely a review of employee reimbursements made by the Nutmeg Public Schools in the last year.  Ms. Superintendent advised the Board members that they should not discuss reimbursement that evening, because new legislation requires the Board to post on its website any documents the Board members may discuss at a regular or special meeting.  “I can pull up a spreadsheet and answer questions about reimbursements,” Ms. Superintendent explained, “but I don’t know how to post the spreadsheet on our website so that members of the public can follow along.”

In response, Bob erupted with annoyance.  “There they go again!” Bob seethed.  “Year after year after year, the General Assembly thinks up new ways to torment us and passes laws that impose new obligations on us.  Well, that ends now.  I move that we add a different item to the agenda, namely that the Nutmeg Board of Education will decide for itself what to post on its website without regard to the actions of the General Assembly.”

Bob’s frustration with the ever-increasing list of mandates imposed on boards of education resonated with his fellow Board members, and the Board promptly added Bob’s motion to the agenda and then approved the motion by unanimous vote.  

A week later, Ms. Superintendent was surprised to receive a written notification from the State Board of Education that Gary Gadfly had filed a Section 10-4b complaint against Bob and the Board, alleging that the “Nutmeg Board of Education was failing to implement the educational interests of the state.”  The notification stated further that a representative of the State Department of Education would be coming soon to investigate. 

Ms. Superintendent promptly notified the Board members of this complaint and reached out to Ms. Board Attorney to ask for her advice.  Ms. Board Attorney responded with a lengthy email, advising the Board on its obligations under the new legislation.  Mr. Chairman then had a special meeting posted, the agenda of which was “Discussion and possible action on a pending Section 10-4b complaint and Ms. Board Attorney’s advice.”

Gary was delighted to see that the Board had received his complaint, and he attended the meeting, eager to hear what the Board members had to say.  Gary was disappointed, therefore, when the Board convened in executive session when the meeting started, and he promptly filed a new complaint, this time with the Freedom of Information Commission.

What’s the story with 10-4b complaints and can the Nutmeg Board of Education discuss its response to this complaint in executive session?

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The FOIA issues here are straightforward, but the Nutmeg Board needs to understand the Section 10-4b process and its new posting obligations under Conn. Gen. Stat. §10-220(g).

The Board had every right to discuss its response to the Section 10-4b complaint (discussed further below) in executive session, because the complaint is a “pending claim,” discussion of which is authorized in executive session by Conn. Gen. Stat. § 1-200(6)(B).  Moreover, members of a board of education may discuss written legal advice from its attorney on any issue in executive session as authorized by Conn. Gen. Stat. §§ 1-200(6)(E) and 1-210(b)(10), provided that the subject of the legal advice is referenced on the agenda.  

The Nutmeg Board of Education does need to learn more about the Section 10-4b process.  We start with Conn. Gen. Stat. § 10-4a.  That statute defines the educational interests of the State as follows:

For purposes of sections 10-4, 10-4b and 10-220, the educational interests of the state shall include, but not be limited to, the concern of the state that (1) each child shall have for the period prescribed in the general statutes equal opportunity to receive a suitable program of educational experiences; (2) each school district shall finance at a reasonable level at least equal to the minimum budget requirement pursuant to the provisions of section 10-262j an educational program designed to achieve this end; (3) in order to reduce racial, ethnic and economic isolation, each school district shall provide educational opportunities for its students to interact with students and teachers from other racial, ethnic, and economic backgrounds and may provide such opportunities with students from other communities; and (4) the mandates in the general statutes pertaining to education within the jurisdiction of the State Board of Education be implemented.  (Emphasis added).

The highlighted words about implementing the mandates in the general statutes is the relevant provision here.

Conn. Gen. Stat. § 10-4b authorizes any person to file a complaint with the State Board of Education alleging that a board of education is not implementing the educational interests of the State.  If the State Board of Education finds that the complaint is “substantial,” it appoints an agent to investigate.  If the agent finds that there is reasonable cause to find that the board of education has not implemented the educational interests of the State, the State Board of Education conducts an “inquiry” at which the board of education can respond.  If after conducting the inquiry, the State Board of Education determines that the board of education has failed to implement the educational interests of the State, it may require the board of education to develop a plan of action to remedy the failure.  Moreover, the State Board of Education may seek to enforce the order in court.

In recent years, Section 10-4b has taken on greater prominence.  Since 2021, Conn. Gen. Stat. § 10-222r has required that the Social and Emotional Learning and School Climate Collaborative “develop a plain language explanation of the rights and remedies available under sections 10-4a and 10-4b,” and Conn. Gen. Stat. § 10-222q has required that boards of education post that plain language statement on their websites, presumably to inform parents that they may file a 10-4b complaint if they think school officials have not followed the law.

Newly enacted, Conn. Gen. Stat. § 10-220g provides that boards of education “conducting a regular or special meeting of such board shall make available for public inspection the agenda for the meeting or any associated documents that may be reviewed by members of the board at such meeting and post such agenda and documents on the Internet web site of such board.”  One may reasonably interpret this requirement as relating to the public Board packet, and, as the Nutmeg Board did here, boards can still discuss other records at a meeting without violating this new law.  However, more generally the duty of boards of education to implement the educational interests of the state includes compliance with applicable laws, and the blanket refusal by the Nutmeg Board of Education to follow the prescriptions of Section 10-220g is not permitted under Sections 10-4a and 10-220.