See You In Court - March 2023

Bob Bombast, veteran member of the Nutmeg Board of Education, serves as Chairperson of the Policy Committee of the Nutmeg Board of Education.  Ms. Superintendent called Bob last month and asked him where things stand on the required revisions to the Board’s policy on truancy, as required by Public Act 22-47.

Bob was annoyed that he was only now finding out about a need to amend the truancy policy.  Bob Googled Public Act 22-47, and he found that boards of education must amend truancy policies in three respects: (1) the policy must now provide for giving a parent or guardian of a child who is truant information concerning the existence and availability of the 2-1-1 Infoline program and other information (2) on and after July 1, 2023, the policy must require that each child who is a truant be evaluated to determine if additional behavioral health interventions are necessary for the well-being of the child, and (3) on or before September 1, 2023, the policy must include a truancy intervention model to be developed by the CSDE that will account for mental and behavioral health, or a similar truancy intervention plan.

Bob promptly emailed the entire Board to convey these new requirements, and he convened a meeting of the Policy Committee to review and amend the policy.  Bob was surprised when several Board members who are not serving on the Committee showed up for the meeting so that a quorum of the Board was present.  However, appreciative of the attention his committee was receiving, Bob welcomed the other Board members to the meeting.

As the Committee reviewed the Board’s current truancy policy, Bob was surprised to read that the it includes a requirement that, if a student in grades K-8 “fails to report to school on a regularly scheduled school day and no indication has been received by school personnel that the child's parent or other person having control of the child is aware of the pupil's absence,” school personnel or volunteers must make “a reasonable effort” to notify the student’s parents or guardian of the absence “by telephone and by mail.”

“That sounds like trouble,” Bob told the Committee.  “Let’s get rid of that provision so that we don’t get sued because someone didn’t call a parent about an absence.”  Even though he is not on the Policy Committee, Board member Mal Content spoke up in support of Bob’s suggestion.  The Committee agreed to delete that sentence, and it discussed the new requirements.  Committee member Penny Pincher expressed concern about the new requirement that truant students be evaluated.  “How much is that going to cost?” she wondered aloud, but Bob brushed her concerns aside, stating that the law is the law.

The Committee came up with recommended changes to the truancy policy, and Bob sent the draft revised policy to the entire Board for a first reading.  When Nancy Newshound, ace reporter for the Nutmeg Bugle, saw that discussion of the truancy policy was on the agenda, she asked Bob for a copy of the draft policy for a story she was writing.  Bob told her that she could read the policy when it the Board discusses it, but for now, he wouldn’t be sending her the Committee’s recommended policy, because it is a preliminary draft.

Nancy was not persuaded.  Besides, Nancy told Bob, the Policy Committee meeting was illegal because a quorum of the full Board was in attendance.  Nancy ended the conversation by telling Bob that she expected him to send her the draft policy by midnight or she would be filing a complaint with the Freedom of Information Commission.

Should Bob and the Board be worried about Nancy’s threat?

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Adopting policies and keeping them current is one of the basic responsibilities of boards of education.  The need this year to revise truancy policies is but one example of the many policy mandates imposed by the General Assembly.  CABE has an extensive policy service to assist boards of education in fulfilling this important duty, described online here.

As Bob considered changes to the truancy policy in Nutmeg, he was appropriately concerned that the Board not impose obligations on itself that, if unfulfilled, could result in a legal claim.  Happily, Bob’s concern here is addressed right in the truancy statute (Conn. Gen. Stat. § 10-198a) itself, which provides that “[a]ny person who, in good faith, gives or fails to give [the required] notice [that a student did not arrive at school] shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed . . . .”  However, board members must be careful more generally not to overpromise in writing policies.  

Liability for negligence may be imposed when (1) school officials have a duty of care, (2) they breach that duty, (3) the breach causes an injury, and (4) the injury was foreseeable.  Making promises in policy can establish a standard of care, and if those promises are not kept and an injury results, liability may follow.  When adopting policies, boards of education must be realistic and take care not to impose unrealistic obligations on staff. 

This situation also raises a number of FOIA issues.  First, Bob sent an email to all the Board members notifying them of the new requirements.  That was fine, because Bob’s providing this information to the Board members would not be a “discussion” of Board business among a quorum unless Board members “reply all” with related emails.

Second, a quorum of the Nutmeg Board of Education attended the meeting of the Policy Committee, even though some members were not on the Committee.  That may also have been fine.  In defining a “meeting” for FOIA purposes, Conn. Gen. Stat. § 1-200(2) includes the following clarification: “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.”  While all Board members were thus free to attend the Policy Committee meeting, the question here is whether Board members were given special treatment (such as Mal’s being permitted to comment).  If other Board members are treated like members of the public, their attendance is irrelevant for FOIA purposes.  However, giving other Board members special privileges at a committee meeting can cause it to morph into an illegal, unposted meeting of the full Board.

Finally, Bob denied Nancy Newshound access to the revised policy proposed by the Policy Committee, claiming that it was a draft not subject to disclosure.  To be sure, Conn. General Statutes § 1-210(b)(1) provides that disclosure is not required of “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”  The Policy Committee here may prefer to delay disclosure of its draft policy until the full Board has an opportunity to discuss the draft.  However, that is not an option.  Section 1-210(e)(1) goes on to limit the preliminary draft exemption by providing that the exemption is not available when a record is “part of the process by which governmental decisions and policies are formulated.”  The draft revised policy was certainly part of the governmental decision-making process, and, as such, it was a public record subject to disclosure in response to Nancy’s request.