SEE YOU IN COURT - June 2020

The Nutmeg Board of Education is getting used to the new normal, meeting remotely during the COVID-19 emergency.  The Board members have enjoyed the convenience of meeting in their sweatpants in the comfort of their homes, and for the most part, they were delighted not to have to listen to the public’s incessant complaints during Public Comment.

The mood was somber, however, at the first remote meeting following Governor Lamont’s announcement that all Connecticut schools will remain closed for the rest of the school year.  Wanting to lift everyone’s spirits on at the beginning of the meeting, Mr. Chairperson went on and on about how Nutmeg teachers had really stepped up to implement high-quality distance learning.  But then Mr. Chairperson surprised Ms. Superintendent by calling on her to report to the Board and the public on the plans to reopen the Nutmeg Public Schools in the fall.

“As much as I would like to provide that update,” Ms. Superintendent began, “it’s way too early.  We are in the middle of planning for the new school year, and we will be reporting to you on our plans as soon as possible.”

“Not so fast,” interrupted Board member Mal Content.  “I don’t want to sit here like a potted plan while the Administration decides what we will be doing next fall.  Board members should be in on the planning from the beginning.”

“How would that even work?” responded Ms. Superintendent.  “We are waiting for State guidance, and then my central office team needs to figure things out before we can present a plan to you Board members for your consideration.”

“I have an idea,” interjected veteran Board member Bob Bombast.  The other Board members groaned audibly when Bob spoke up, but Bob pressed on.  “I agree with Mal that the Board members need to be in on the planning from the beginning, but I realize that we can’t really talk openly about all the options at a public Board meeting, especially when everyone is home and has nothing better to do than listen in to our meetings.  So I propose that a Board member attend each of the planning meetings that Ms. Superintendent will be holding.”

Mal Content congratulated Bob on his great idea, and promptly made the related motion.  Bob Bombast seconded the motion, and the other Board members quietly went along, figuring that there was no harm in humoring Bob and Mal.

Thus emboldened, Bob then announced his “vision” for reopening in the fall.  “Whatever the State says,” Bob began, “we will do more.  Nothing is too good for the Nutmeg Public Schools and the children we serve.  We will take every possible precaution to keep our children safe.  We will be the model for Connecticut.”

Board member Penny Pincher was not inspired by Bob’s speech, and she questioned the wisdom of Bob’s grand pronouncement.  “Don’t get too far over your skis, Bob.  We have no idea what these arrangements for the fall will cost.”

Bob was undeterred, and he started in again, saying that, “We can’t put a price on safety . . . .”  But Mr. Chairperson cut Bob off, explaining that Board member participation in the administrative planning process should suffice and that the Board should just be patient.         

Should Nutmeg be concerned about Bob’s aspirations?

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Planning for the opening of school in the fall presents a huge challenge for school districts throughout the State.  Student safety, of course, must be a primary concern.  However, school districts must be realistic in balancing safety concerns with the need to educate their students. 

School officials who exercise discretion in doing their jobs are generally immune from liability under the principle of governmental immunity.  However, there are three exceptions to this principle.  Liability can be found (1) when the alleged acts involve malice, wantonness or intent to injure, rather than simple negligence, (2) when a statute permits lawsuits related to such actions, and (3) when the failure to act will subject an identifiable person to imminent harm.  For our purposes here, the third exception is the most important because students in school are identifiable persons who may be harmed by negligent actions.

School districts must be reasonable in writing policies and establishing procedures, whether for school reopening in the fall or otherwise.  The following principles are applied to establish liability: (1) the defendant must owe the plaintiff a duty of care, (2) the defendant must have been unreasonable in the actions taken or not taken, (3) such unreasonable action or inaction must cause an injury, and (4) the injury must be foreseeable.  When board members or other school officials establish procedures, they are defining what is “reasonable” action, and a failure to follow those procedures can be considered unreasonable per se, with liability as a result.  Accordingly, it is important for school officials to consider whether procedures proposed for reopening are doable.  If a board of education adopts procedures for the reopening that are not realistic and therefore not followed in all respects, parents and others may claim that a sickness or injury to their child was “caused” by such failure to follow established procedures, and they may seek money damages. 

Not every failure to follow established procedures will result in liability.  In 2014, the Connecticut Supreme Court clarified the “imminent harm” exception, holding that “the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.”  Haynes v. City of Middletown, 314 Conn. 303 (2014).  Nonetheless, by adopting realistic procedures that will be followed, school districts will avoid inviting litigation over a failure of school employees to comply with procedures.

Finally, there is a problem with the Board’s plan to involve its members in administrative meetings so that Board members can be in on private planning discussions.  The FOIA excludes “an administrative or staff meeting of a single-member public agency” from the definition of “public meeting.”  Superintendents are “single-member public agencies,” and in accordance with this FOIA provision, they may hold meetings with their staff without posting the meetings in accordance with the FOIA.  If board members attend those meetings, however, the Freedom of Information Commission may well hold that such meetings are no longer “administrative or staff meetings,” with the result that such meetings must be posted and, except for executive session, must be open to the public.