See You In Court - March 2024

The members of the Nutmeg Board of Education were exhausted from a very difficult budget season.  Ms. Superintendent was therefore reluctant to tell the Board members that they had to schedule a time to hear a parent’s complaint.  Board policy in Nutmeg provides that parents with complaints must follow the chain of command, through the teacher, principal, assistant superintendent, and superintendent.  If the parent is still not satisfied, however, the Complaints Policy in Nutmeg provides that the Board of Education will hear the complaint and provide a final and binding response.

Mr. Chairperson scheduled the hearing at the end of a regular meeting of the Board.  When the Board got to that agenda item, Mr. Chairperson asked for a vote to go into executive session to hear a parent complaint.  Veteran Board member Bob Bombast, however, was particularly cranky, and he challenged Mr. Chairperson on this point.

“Over the years, I have developed a comprehensive understanding of the Freedom of Information Act,” Bob announced.  “I am well aware that there are only five reasons under the law for which public agencies can convene in executive session, and ‘Parent Complaint’ is not one of them.  I, for one, will not be voting to go into executive session.”

The patience of the other Board members for Bob’s grandstanding had worn thin during the budget process, and Board member Mal Content simply said, “So moved,” and Penny Pincher promptly seconded the motion.  The vote was 4 to 1, and Mr. Chairperson convened the Board in executive session, inviting Ms. Superintendent and the parent to join the Board.

Once the Board was in executive session, Mr. Chairperson recognized the parent and asked her to present her complaint.  Tearfully, the parent began.  Her son had been framed by another student, she claimed, whose allegations of harassment against the son had resulted in his being suspended for three days.  The parent explained that she had appealed to the principal, the assistant superintendent and, finally, Ms. Superintendent, but no one wanted to listen.  She ended by asking the Board to expunge the suspension from her son’s record.

When the parent was done, Ms. Superintendent told the Board that the suspension of students is an administration responsibility and that the Board should just reject the complaint.  Mr. Chairperson then asked the parent if she had anything further to say, and when the parent said no, the Board promptly denied the complaint and reconvened in open session.  Before the Board adjourned the meeting, however, Red Cent, Chair of the Policy Committee, told the Board that he would be proposing a revision to the Complaint Policy, because hearing that parent’s complaint had been a colossal waste of the Board’s time.

Red Cent followed through, and he put “Revision of the Complaint Policy” on the agenda for the next meeting of the Policy Committee.  There was great interest in this matter among the Board members, and Board members who were not on the Policy Committee came to the meeting, resulting in a quorum of the Board being present when the Policy Committee meeting convened.  Seeing the other Board members, Red Cent was concerned that he would now be presiding over a meeting of a quorum of the Board that had not been posted, and after explaining his concern, he asked the Board members who were not on the Committee to leave.

Did the other Board members have to leave the Policy Committee meeting?

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The Board members not on the Policy Committee had every right to attend the meeting as long as they are not given special privileges.  The Freedom of Information Act (FOIA) specifies that “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).  If other Board members in Nutmeg attend a properly-posted meeting of the Policy Committee as visitors, the presence of a quorum of the Board, as such, is not a “meeting” under the FOIA.  However, if the other Board members attending the meeting act together by speaking or by sitting at the table together, the meeting could morph into an unposted (and thus illegal) meeting of the Nutmeg Board of Education.

This situation raises other FOIA and policy issues.  As to the FOIA, Bob Bombast claimed that the Board could not discuss a “Parent Complaint” in executive session.  He was wrong.  Bob correctly stated that there are only five reasons for which a public agency can convene in executive session.  However, the last of the five is “discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.”  The cited statute sets forth the list of records that are exempt from disclosure, including, for example, attorney-client privileged communications and records describing negotiation strategy.  Another category of exempt records is “Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g,” (FERPA), which includes personally-identifiable student records.  It was appropriate for the Board to discuss the parent’s complaint in executive session because it involved a discussion of student discipline records, which are confidential under FERPA.

Notably, “discussion” is the operative word, and the Board committed a faux pas when it denied the parent’s complaint while it was still in executive session.  Boards of education can discuss a number of subjects in executive session as specified in the FOIA, but the executive session privilege extends to only discussion, and any action must be taken in open session.

Board member Red Cent properly brought the Nutmeg Complaint policy to the Policy Committee for further consideration.  As written, the policy makes the Board the arbiter of last resort for any disagreements that cannot be resolved by the Superintendent.  This provision creates two problems for the Nutmeg Board.  First, it can involve the Board in operational matters that are and should remain the responsibility of the Superintendent (who by statute is the chief executive officer of the board of education).  Second, it causes the Board to lose control of its agenda because any disaffected person can demand a meeting with the Board.  If boards of education wish to have a complaint policy, it is important to reserve to the board the decision whether to hear a complaint.  CABE’s policy service can provide examples of appropriate complaint policies for boards to consider.

Finally, members of the public can demand a hearing by a board of education in one circumstance.  Conn. Gen. Stat. § 10-238 provides that, if one percent of the voters (or fifty voters, whichever is greater) sign a petition demanding a hearing, the board of education must hold “a public hearing on any question relating to the provision of education offered by such board specified in such petition” within the three weeks of the date the petition is received.  Fortunately, such petitions are rarely submitted, and the obligation is only to conduct a hearing, and boards are not required to take any other action on the petition.