See You In Court - December 2024

Last May, the members of the Nutmeg Board of Education voted to extend Mr. Superintendent’s contract for one year, with the result that his contract now extends from July 1, 2024, through June 30, 2027.  However, over the last six months, some members of the Board have decided that the performance of long-suffering Mr. Superintendent has been OK, but just OK.  Accordingly, as they have discussed privately among themselves, these Board members are now thinking that the Board should consider alternatives.

Veteran Board member Bob Bombast is one of the Board members wondering if the Board could do better, and he decided at the Board’s regular meeting this month to take action.  When the Board reached New Business on the agenda, Bob asked to be recognized.  “Mrs. Chairperson, I move that we add an item to our agenda: Creation of a Personnel Search Committee.”

Ms. Chairperson was surprised by Bob’s motion, and she asked him why the Board would create a search committee.  In response, Bob explained that the Board may benefit from conducting a superintendent search.

“Wait, what?” interjected Mr. Superintendent.  “What are you talking about?”

“No offense intended, Mr. Superintendent,” Bob responded.  “You are doing a fine job.  It is just a matter of prudence.  Unless we conduct a search, the Board doesn’t know who else is out there.  You are a solid B, but there may be an A player out there who would like to be our Superintendent.”

“Well,” said Mr. Superintendent, “the Board might want to save itself some time and drop this stupid idea.  I’m not going anywhere.”

Board member Mal Content spoke up.  “Just relax, Mr. Superintendent.  We know that you have a contract.  But no one can predict the future.  We have been talking it over, and we have the votes to conduct the search.  Depending on what we find through the search process, we may want to make you an offer you can’t refuse.”

Ms. Chairperson didn’t like the way this public discussion was going, and she moved that the Board convene in executive session to discuss this matter further.  Mal seconded the motion, and the Board promptly voted to convene in executive session.  As the Board members got up to go to the conference room, Ms. Chairperson intercepted Mr. Superintendent.  “We’ve got this,” she told him.  “We will let you know if we need you.”

With that, the Board members met in executive session without Mr. Superintendent to discuss Bob’s motion.  The other Board members chastised Bob for springing this surprise on them and on Mr. Superintendent.  However, given that the cat was now out of the bag, the Board members decided to stay the course and create the search committee as Bob proposed.

Ms. Chairperson then reconvened the meeting in open session.  “It has been moved and seconded that the Board create a personnel search committee, and to keep it simple, we Board members will make up the committee.”  The Board members then voted unanimously to create the personnel search committee in accordance with Bob’s motion and to name themselves the members of the committee.

Did the Board violate Mr. Superintendent’s rights by excluding him from the executive session?

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References by Board members to prior discussions and to “having the votes” suggest that a quorum of the Board may have improperly discussed Mr. Superintendent’s performance outside of a posted meeting in violation of the FOIA.  However, excluding Mr. Superintendent from the executive session did not violate his rights, as described below.  The larger problem is that the executive session itself was improper.  

In accordance with the FOIA, public agencies may vote at a meeting to add an item to the agenda, but only by a two-thirds vote and only at a regular meeting.  If the item added to the agenda is privileged to executive session, then, and only then, can a public agency convene in executive session to discuss that agenda item.  Here, the Board never took the necessary vote to add the item to the agenda, and therefore the executive session was improper. 

That said, excluding Mr. Superintendent from the executive session did not violate his rights.  Board members and superintendents should be aware of a ruling last May by the Freedom of Information Commission.  In Arriola v. Hampton Board of Education et al., Docket FIC#2023-0356 (May 22, 2024), the Commission ruled that a board of education violated the FOIA by permitting its superintendent to attend executive session even though she did not speak.  Conn. Gen. Stat. § 1-231 provides that attendance in executive session must be limited to the members of the agency (here, board of education) and persons invited by the public agency to provide testimony or opinion, provided however, that “such persons’ attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion.”  Until there is a legislative fix, boards should be sure to invite their superintendents into executive session only when his or her testimony or opinion is required on the matters under discussion in executive session (which will almost always be the case).

The Board’s action to create a personnel search committee raises a number of separate legal issues.  The creation of a personnel search committee was improper here, of course, because the position in question was not vacant.  However, boards of education may benefit from a review of such committees and their functioning.  Section 1-200(7) provides that public agencies can create a “personnel search committee,” “whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive-level employment position.” 

The creation of such a committee permits public agencies to conduct a search process confidentially without posting or permitting the public to attend their meetings.  While boards of education typically appoint such committees to conduct a search for a superintendent, the statute refers to “an executive-level employment position,” which could be an assistant superintendent or even high school principal position.  Bradshaw Smith v. Personnel Search Committee, Windsor Board of Education, Docket #FIC 2008-047 (August 13, 2008).

As noted above, the FOIA provides that the purpose of a personnel search committee is to recommend to the appointing agency a candidate for an executive level position.  It may seem counterintuitive that a board of education could appoint its members to such a committee to recommend a candidate to themselves.  However, the Freedom of Information Commission has ruled that such a procedure is appropriate.  See, e.g., Steinmetz and The News-Times v. Danbury Board of Education, Docket #FIC 2003-109 (September 24, 2003).  Moreover, if board members serving as a personnel search committee want input from others, they can invite such persons to their private meetings to obtain such input.  Limiting membership of such a committee to members of the board is advisable because it permits the board itself to control the process that will result in the appointment to an executive-level position.