SEE YOU IN COURT! - November 2012

Bob Bombast, veteran Board member of the Nutmeg Board of Education, thought it would be good to get an early start on the budget process. In November, he sent around to his colleagues a “draft” budget in a confidential email, and he received a number of responses. Appropriations over the last four years had been woefully inadequate, and Bob really wanted to start restoring some of the positions that had been cut. Accordingly, Bob’s “draft” budget reflected an increase of 8% over last year. Bob shared his “draft” budget, as well as all the Board member responses, with Mrs. Superintendent, who, of course, was delighted to see Bob’s handiwork.

While Mrs. Superintendent was processing Bob’s budget, Seymour Dollars, Chairman of the Nutmeg Board of Education, sent an email to all town department heads, including the Superintendent, directing that they prepare a 2013-2014 budget with spending at 90% of the current year.

“Well, that is not going to happen,” Mrs. Superintendent thought to herself as she set about preparing her recommended budget. She figured she should make a good faith effort to reduce Bob’s draft budget, and after sharpening her pencil, Mrs. Superintendent came up with her final budget recommendations. When all was said and done, she recommended that the Board adopt a budget that would require an increase in the appropriation from the Town of 7.0%. Following Bob’s lead, Ms. Superintendent sent her budget to the Board in “draft” form for discussion.

At the next meeting, Bob made an oblique reference to the “battle of the budgets” and moved that the Board convene into executive session to reconcile the two versions. However, Mal Content, another Board member, challenged Bob, asking how the Board could possibly secretly deliberate on its budget proposal. Bob scoffed in response. Then, Bob explained as follows, “Of course executive session is proper. In case you didn’t notice, I marked my proposal ‘draft,’ and Mrs. Superintendent followed suit. Draft documents are confidential, and we can discuss confidential documents in executive session. Besides, as we work through the budget, chances are that we will have to cut positions. How would you like to be the art teacher who reads for the first time in the newspaper that her position has been eliminated? Executive session for such “personnel matters” is just common decency here.”

After Bob’s vehement response, Mr. Chairperson shrugged and asked for a motion to go into executive session. Bob promptly moved that the Board convene into executive session for “draft budget and related personnel discussions.” Mal Content, Penny Pincher and Red Cent were not convinced, but on a 5-3 vote Mr. Chairman declared that the ayes have it, and the Board convened into executive session.

Following a heated discussion in executive session, the Board adopted its budget for 2013-2014. The next day, Seymour Dollars sent Mr. Chairperson an email chastising the Board. “Mayor Megillah and I are disappointed in the Board’s illegal and irresponsible actions. Before you submit your budget to the Board of Finance, I direct you and the Board to reduce it to the 90% of current year expenditures. Got it?”

Is Seymour able to do that? 

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In a word, no. But before we talk about Seymour, we must note that the Board’s budget deliberations violated the Freedom of Information Act in various ways.

First, we should clarify the status of “preliminary drafts and notes” under the Freedom of Information Act. In general, it is permissible to keep preliminary drafts and notes confidential. The general premise is that a draft document is a work in process, and a public agency should be able to keep it confidential until it is finalized. Note that the exemption from disclosure is not automatic; the statute provides that preliminary drafts or notes are confidential, “provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” But quite often such is the case. Public officials have the right to edit and revise records that they create before they are submitted to public scrutiny (and, of course, criticism). For example, the Appellate Court has ruled that personal notes that public officials take at meetings are preliminary drafts. Given the shorthand we use and errors we make when we take notes, the public interest in maintaining such notes as confidential is clear, and public officials typically consider them confidential.

However, there is a significant exception to this general rule. The FOIA provides that disclosure is required of any “(1) Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated . . . ” In plain English, once a draft is shared with the members of a public agency, it will be part of the process for making decisions, and the draft will be a public record unless there is another exemption from disclosure. Here, the draft budget that Bob prepared was part of the Board’s budget deliberations, and it was a public record as soon as he shared it with his fellow Board members.

The Board also misconstrued the “personnel” provision for executive session. The possibility that discussion may affect personnel does not permit executive session. A good test is to ask (1) which employees will be discussed, and (2) have they been notified of that discussion? If the Board cannot answer both questions affirmatively, the executive session will be improper.

The Board also failed to meet the procedures requirements for the executive session as well. The 5-3 vote fell short of the required two-thirds vote, and the Board should have expressly stated the reason for the executive session.

Finally, Seymour cannot dictate to the Board that it must submit a lower budget estimate. Under the statute, it is the responsibility of the board of education to estimate the amount needed to operate the schools in the coming year. Once the board of education has done that, the town must consider those identified needs, the other needs of the town and make an appropriation. Moreover, it is unlikely that the Town here would be able to reduce its appropriation from the current year. Under the minimum budget requirement (MBR), subject to limited exceptions, towns must appropriate to boards of education at least what was appropriated in the prior year as well as any increases in the ECS cost share grant for that year.