See You In Court – December 2021

In Janus v. AFSCME (U.S. 2018), the United States Supreme Court ruled that imposing compulsory agency fees on non-union members violates employee First Amendment rights.  Ever since, the Nutmeg Union of Teachers (NUTS) has actively picked fights with the Nutmeg Board of Education to convince unit members that they need NUTS’ help.  In the face of such activism, Ms. Superintendent has worked hard to resolve the various grievances NUTS has filed.  But when Ms. Superintendent refused to approve Tom Teacher’s request to attend a conference in Las Vegas, NUTS filed a grievance against Ms. Superintendent’s decision.

Last week, Ms. Superintendent informed the members of the Nutmeg Board of Education in executive session that a grievance was coming their way.  She described the grievance, and she cautioned them that approving Tom’s request would set a terrible precedent.  Veteran Board member Bob Bombast expressed concern.  “If we are going to hear this grievance, Ms. Superintendent, should you be telling us about this grievance now?  Aren’t we supposed to be impartial judges?”  Ms. Superintendent explained that processing Tom Teacher’s grievance is part of the collective bargaining process, and that she and the Board are on the same team.  Nonetheless, she responded, she would be happy to wait for the hearing to tell the Board why Tom’s grievance should be denied.

Last night, the Board held the grievance hearing.  Ms. Chairperson started the hearing by recognizing Bruno, the NUTS representative.  Bruno’s first request, however, was to ask the Board to convene into executive session.  Ms. Superintendent objected to executive session, stating that the public has the right to know what NUTS is up to.  Bruno promptly countered with the accusation that Ms. Superintendent was attempting to intimidate NUTS and Tom Teacher by requiring a hearing in public.  Ms. Chairperson didn’t join in that argument, and she simply asked the Board members whether there was a motion to go into executive session of the purpose of conducting a grievance hearing.  There were only crickets in response.

“OK, then,” Ms. Chairperson announced, “I guess we will be doing this in open session.  Bruno, please proceed.”

“Thank you, Ms. Chairperson.  Tom simply wants what he is entitled to under the contract.  He wants to attend a conference on social-emotional learning, and it’s not Tom’s fault that it is in Las Vegas.  The contract provides that permission for conferences should not be unreasonably withheld, and Ms. Superintendent’s denial was clearly unreasonable.”

Ms. Chairperson thanked Bruno for his succinct presentation, and she asked Ms. Superintendent to present her side of the story.  Ms. Superintendent thanked Ms. Chairperson, and she explained that she denied Tom’s request because Tom Teacher could certainly learn about social emotional learning in Connecticut.  “If you have any other questions,” Ms. Superintendent concluded, “I will be happy to answer them during the Board deliberations.”

“Wait a minute!” Bruno interjected.  “If Ms. Superintendent is going to share more information, she should do so now or in an executive session as we requested.  Ex parte communication between the Board and the Superintendent about Tom’s grievance is unfair!”

Ms. Chairperson was unmoved.  “The grievance hearing is adjourned.  The Board will now deliberate, and Ms. Superintendent will join us.  Thank you, Bruno, and give our best to Tom Teacher.”

Is it proper for the Board to deliberate privately with Ms. Superintendent?

*         *         *

In a word, yes, for the reason Ms. Superintendent gave.  More generally, this grievance hearing raises a number of legal issues.

First, given that processing grievances is part of the collective bargaining process, shouldn’t the Nutmeg Board of Education be able to conduct the hearing on Tom’s grievance privately in a non-meeting?  That sounds reasonable, but it is only partially true.  In Waterbury Teachers Association v. Freedom of Information Commission, 240 Conn. 835 (1997), the Connecticut Supreme Court considered whether a grievance hearing before a board of education can be considered “strategy or negotiations with respect to collective bargaining,” which would be exempt from FOI requirements.  The court however, held that grievance hearings are “meetings” of a public agency under the FOIA because they involve the presentation of information, not just discussion of strategy:

[W]e hold that [the FOIA] must be construed to contemplate a bifurcated grievance hearing.  Grievance hearings are meetings that must be open to the public during the presentation of evidence regarding the underlying facts allegedly giving rise to the grievance, but they may be closed to the public, in the absence of a waiver, during negotiations regarding appropriate remedies or settlements.

Therefore, the Board here properly held the grievance hearing in open session.

NUTS, however, wanted the Board to hear the grievance in executive session.  Whether and when a board can conduct any part of a grievance hearing in executive session depends on what the information the Board receives.  If such information is otherwise privileged to executive session, for example, records of teacher evaluation or records that are confidential under FERPA, that portion of the discussion may be held in executive session.  That was not the case here, and the Board had every right to proceed with the grievance hearing in public session.

Deliberations, however, are a different story.  In the Waterbury Board of Education case, the court focused on the fact that the presentation of evidence in a grievance hearing does not relate to strategy decisions, but rather is simply information.  Conversely, once the evidence has been presented, the resolution of a grievance does indeed involve strategy discussions.  Therefore, a board of education may adjourn the hearing and then conduct its discussion as to potential resolution of the grievance in private session outside of FOIA requirements.  Boards of education may include the union and the administration in such deliberations, or it may exclude the union and/or the administration.  After such deliberations, the board must make a decision, but even that decision can be reached privately, without a public vote.  Given that the union can typically appeal any grievance decision to arbitration, the grievance decision can be considered a proposal to resolve a collective bargaining matter, and as such can be maintained confidentially until the grievance process has concluded.

Finally, we note that NUTS protested that Ms. Superintendent was permitted to join the Board in its deliberations.  To be sure, there are situations in which board members do indeed act as impartial judges, which is the case in teacher tenure hearings, student expulsion or student school accommodation hearings.  However, as Ms. Superintendent noted, processing a grievance is part of the collective bargaining process, and boards are certainly not impartial vis-à-vis a union claim concerning a decision of the superintendent.  Accordingly, a board of education can (and should) include the superintendent in deliberations over how best to respond to a grievance.  A response to a grievance sets precedent, and there may be other relevant facts that the superintendent may prefer to share confidentially, and boards of education should make their grievance decisions with all the relevant facts.