See You In Court - January 2023

Bob Bombast, the senior member of the Nutmeg Board of Education, is a busybody who is always looking for trouble.  As he was scrolling through Facebook, he came across a post by Tom Teacher, a Facebook friend who is employed in Nutmeg at Median Middle School.  In his post, Tom Teacher complained bitterly that his principal unfairly denied him three days of personal leave to attend Nature’s Classroom in a neighboring school district to serve as a chaperone for his fifth-grade son.

Bob was intrigued by the post, and he decided to act.  Bob called the principal mentioned in the post, and asked him to explain why he decided to deny Tom’s request for three personal days.  The principal expressed some uncertainty to Bob as to whether they should be talking about this teacher, but Bob was insistent.  The principal then explained that he denied Tom’s request because granting Tom’s request for personal leave for this reason would set a bad precedent for other teachers.  Besides, he told Bob, it is very difficult these days to find substitutes.  Warming to the subject, the principal concluded by telling Bob that Tom isn’t that great a teacher in any event.           

Bob thanked the principal and called Ms. Superintendent to tell her about his conversation with the principal.  Bob was not overtly critical of the principal’s decision to deny Tom Teacher’s request for personal leave, but he did ask Ms. Superintendent if perhaps the principal is too much of a hard ass.  Ms. Superintendent was polite when she told Bob in no uncertain terms to butt out, and she thought that Bob’s involvement in the Tom Teacher matter was over.

It was not to be.  Tom and his bargaining representative, the Nutmeg Union of Teachers (NUTS), filed a grievance about the denial of personal leave, which was heard and promptly denied, first, by to the principal and then by Ms. Superintendent.  NUTS then appealed for a Board of Education hearing on Tom’s grievance.  The Superintendent’s Administrative Assistant polled the Board members on when the Board could hear the grievance, and Bob was quick to respond as to his availability.  Soon, the hearing on Tom’s grievance was scheduled before a quorum of the Board.

When Ms. Superintendent heard that Bob would be attending the hearing, she called him to suggest that he should stay home because of his prior involvement with Tom’s situation.  However, Bob could not be dissuaded, and he insisted on attending the hearing.  Ms. Superintendent ended the conversation by warning Bob that she would be seeking to recuse him at the hearing.

When the Board convened to hear Tom’s grievance, Ms. Superintendent asked to be recognized on a procedural issue.  “I must move to recuse Mr. Bombast from hearing this grievance because of his conflict of interest.  Mr. Bombast is personal friends with the Grievant, and he has already advocated on his behalf.”  Bob was quick to disagree.  He explained that “Facebook friends” and “friends” are entirely different things.  But fellow Board member Mal Content was tired of Bob’s overstepping his role as a Board member, and Mal moved to exclude Bob from hearing Tom’s grievance.  After further debate and protestations from Bob, the Board voted 8-1 to exclude Bob from the grievance hearing.

Did the Board have the right to take that action?

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Simply put, no, the Board did not have that authority.  But before we discuss Bob’s situation, we will review conflicts of interest more generally.

In fulfilling their responsibilities, Board of Education members face the potential for two types of conflicts of interest – financial conflicts and personal conflicts.  Financial conflicts are straightforward – will the Board member or his or her immediate family derive a financial benefit from the action under consideration by the Board?  Conn. Gen. Stat. § 1-85 defines a conflict of interest for purposes of the State Ethics Codes as follows, and many school districts have similar ethics codes:

A public official, including an elected state official, or state employee has an interest which is in substantial conflict with the proper discharge of his duties or employment in the public interest and of his responsibilities as prescribed in the laws of this state, if he has reason to believe or expect that he, his spouse, a dependent child, or a business with which he is associated will derive a direct monetary gain or suffer a direct monetary loss, as the case may be, by reason of his official activity. (Emphasis added).

Such situations are readily identifiable, and Board of Education members are expected to recuse themselves and not participate in Board deliberations or actions in such situations.

Personal conflicts may also require that a Board member not participate in deliberations on a particular matter.  A “personal conflict” arises when the Board member’s relationships with others creates tension between public duties and private interests.  Board members act on behalf of the public, and their decisions should be made objectively on behalf of the public they serve without undue influence based on personal relationships.  Interestingly, such personal relationships need not be friendships, and animosity toward an individual may also interfere with a Board member’s ability to discharge his or her responsibilities on behalf of the public.

If and when a conflict exists for a Board member, the member must refrain not only from any vote, but also from any related discussion.  Boards of education make their decisions through a deliberative process that involves talking and listening before making a decision, and comments by a Board member who has a conflict of interest could affect the Board’s decision. 

Personal conflicts can be difficult to identify.  The standard is whether a preexisting relationship or knowledge of a situation impairs the ability of the Board member to act objectively on behalf of the public.  The only person who can answer that question for sure is the Board member him- or herself.  To be sure, where decisions involve statutory rights (e.g., school accommodations, student expulsion, teacher employment), a court on review may determine that a conflict of interest deprived the affected person of due process because the decision-maker in such cases must be impartial. However, only a clear conflict will result in such a finding.  Petrowski v. Norwich Free Academy, 199 Conn. 231 (1986).

Turning to Bob’s situation, we note that grievance hearings are established by contract, and the due process concern for an impartial decision-maker applicable to statutory hearings (e.g., school accommodations, tenure hearings) does not apply.  Moreover, Bob’s prior actions in calling the principal, albeit inappropriate, were not advocacy on behalf of Tom.

The bottom line here is that only Bob can decide whether a personal conflict prevents him from discharging his public responsibilities, here, participating in the grievance hearing.  The voters elected Bob to serve on the Nutmeg Board of Education, and the other Board members do not have the legal authority to limit Bob’s ability to serve as a Board member.  Other Board members are free to question the wisdom of Bob’s decision, but they are not empowered to make that decision for him.