See You In Court - July/August 2024

Mr. Superintendent recently reminded the members of the Nutmeg Board of Education that the Board is required by law to adopt a new school climate policy before the end of the 2024-2025 school year.  Penny Pincher, long-serving member of the Nutmeg Board, chairs the Policy Committee, and by email she scheduled a meeting to address this statutory requirement.  Penny attached the CABE School Climate Policy to the email, and she included all members of the Board on the email to keep them apprised of the Policy Committee’s work to address this statutory requirement.

Mal Content, another member of the Board, responded “Reply All” to Penny’s email, and asked if Penny would mind if he attended the meeting to share his thoughts on the proposed Policy.  Penny responded to Mal on the group email to say that she welcomed his attendance at the meeting of the Policy Committee because she valued his opinion.  However, given his prior run-ins with the Freedom of Information Commission, veteran Board member Bob Bombast (and also a member of the Policy Committee) promptly weighed in on the group email, warning that Mal should not attend the meeting because his presence would create a quorum of the Board.  But Penny dismissed Bob’s concerns, replying all with the observation that meetings of the Policy Committee are public meetings that anyone can attend.

Mal liked Penny’s answer, and he came to the meeting of the Policy Committee.  When Penny convened the meeting, she invited Mal to sit with the other members of the Committee and to participate in the discussion, given the important work before the Committee.

Penny started the meeting by explaining that the General Assembly made significant changes in the bullying statute last year, and that Ms. Board Attorney had written her to describe the legal Board’s obligations regarding the changes in the bullying statutes.   Penny then suggested that the Board convene in executive session to review the advice from Ms. Board Attorney.  Ever gun-shy about FOIA matters, however, Bob Bombast objected, pointing out that the agenda for the meeting did not include “executive session.”  In response, Penny told the Committee that she was tired of arguing with Bob and that the Committee would just continue the meeting in open session without discussing the advice from Ms. Board Attorney. 

The Committee then engaged in a careful reading of the Policy.  Bob Bombast observed that the definition of “bullying” in the School Climate Policy was very different from previous definitions, providing simply:

“Bullying” means unwanted and aggressive behavior among children in grades kindergarten to twelve, inclusive, that involves a real or perceived power imbalance.

“How does one know what a ‘real or perceived power imbalance’ is?” Bob asked rhetorically.  “With that vague definition, the Administration will never be able to rule definitively on a bullying complaint.  I move that we strike the reference to a power imbalance and just go with ‘unwanted and aggressive behavior.’”

Penny seconded the motion, noting that simpler is better, and she called for discussion before the vote.  Mal objected to Bob’s motion, stating that a power imbalance is at the heart of conduct that constitutes bullying.  However, Penny reminded Mal that he is not on the Committee, and the three members of the Committee voted to approve Bob’s motion.  Then, after a few more tweaks to the wording of the CABE School Climate policy, the Committee voted to recommend the revised policy to the full Board.

Can the Nutmeg Board of Education adopt the School Climate Policy as “tweaked”?

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In a word, no.  Last year, the General Assembly gave CABE an important responsibility -- to develop a School Climate Policy -- and in the related legislation the General Assembly also required that all boards of education adopt that policy prior to July 1, 2025.  Specifically, Sections 47(13) and 49 of Public Act 23-167 provide that CABE must develop, update and approve a School Climate Policy, which then the Social and Emotional Learning and School Climate Advisory Collaborative must adopt.  Both CABE and the Collaborative have fulfilled these responsibilities, and boards of education in Connecticut may now move ahead and adopt and implement the School Climate Policy.  The Policy sets forth the various requirements for dealing with challenging student behavior, such as designating a school climate specialist, creating a school climate committee, and creating a school climate improvement plan for each school.  By taking the actions as set forth in the School Climate Policy (which reflect the requirements of the law), local and regional boards of education will be in compliance with this new, restorative approach to challenging student behavior.

Significantly, the Nutmeg Board of Education was wrong in its approach.  Under the new law, the School Climate Policy is not a suggestion for boards of education to consider.  Rather, the legislation provides that boards of education must adopt the Policy before July 1, 2025.  Contrary to the common approach whereby boards of education have some discretion in adopting policies that are mandated by statute, here there is no flexibility and boards of education must adopt the School Climate Policy as written.  Accordingly, it was not appropriate for the Nutmeg Board to wordsmith the definition of “bullying” or otherwise to tweak the School Climate Policy as developed by CABE and adopted by the Collaborative.  

The actions of the Policy Committee raise issues under the Freedom of Information Act as well.  The back-and-forth “Reply All” emails are problematic, of course, because the Freedom of Information Commission would likely find that the Nutmeg Board was engaged in a “discussion” by electronic means among a quorum on Board business, which as such would be an unposted meeting in violation of the FOIA.

Mal’s attendance at the meeting of the Policy Committee also raised issues under the FOIA, but Penny could have avoided those problems by declining to give Mal special privileges at that meeting.  As Penny noted, Mal had every right to attend the Policy Committee meeting.  The FOIA specifically provides:

A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.

Conn. Gen. Stat. § 1-200(2).  Given that provision, Mal attending as a member of the public would not have been a problem.  However, when Penny gave Mal special privileges to speak, the meeting arguably morphed into an unposted (and thus illegal) meeting of the full Board. 

By contrast, the Policy Committee could have convened into executive session as Penny proposed, Bob’s concerns notwithstanding, because discussion of written legal advice is privileged to executive session.  Significantly, “executive session” is not an agenda item, and it is not necessary to list “executive session” on the agenda.  Rather, public agencies must include on their agendas the items that they will discuss and on which they may take action.  If discussion of a listed agenda item is privileged to executive session, in whole or in part, boards of education have the right to hold that discussion in executive session, and the FOIA does not require prior warning on the agenda of the possibility that it will convene in executive session.