See You In Court - September 2023

Nellie Newbie was appointed last spring to fill a vacancy on the Nutmeg Board of Education, and she has embraced her new role with enthusiasm, so much so that she has ruffled many feathers.

Shortly after her appointment, Nellie posted a survey on social media, asking for suggestions on how she can best serve Nutmeg school community.  Nellie included a promise at the end of the survey that she would leave no stone unturned in addressing each and every concern expressed.  Another Board member complained to Mr. Superintendent that Nellie’s level of engagement was making the other Board members look bad, and Mr. Superintendent followed up by calling Nellie to ask what on God’s green earth she thought she was doing.

Nellie was only too happy to explain that she is simply doing her job – representing the good people in Nutmeg in all things educational.  Mr. Superintendent tried to explain to Nellie that Board members have an oversight role, but that he and his Administration are responsible for addressing day-to-day operational concerns.  But Nellie was not swayed by Mr. Superintendent’s explanation of the proper role of a board of education member.  Indeed, she vowed to continue to do her “constituent service” as she sees fit.

Mr. Superintendent then called Ms. Board Chairperson to ask for help, explaining that Nellie is out of control and that Ms. Chairperson and the other Board members need to straighten Nellie out.  After conferring with most of the other Board members, Ms. Chairperson sent Nellie a strongly-worded email, reminding her that individual Board members have no authority to act on operational issues. Nellie sent a polite reply back, explaining that she needed to establish herself as a “can-do” Board member if she hoped to get elected to the Board at the end of the term she was completing on a vacancy appointment.  “As a courtesy,” Nellie went on, “I am letting you know that starting next week I will be holding office hours to hear constituent concerns.”  Nellie went ahead and publicized her “office hours” on social media, and a number of community members promptly signed up, including Rabble Rouser, a local gadfly. 

Nellie’s first meeting was with Tom Teacher, who complained that his principal unreasonably denied his request for a personal day to serve as a chaperone on a field trip of his son’s fifth grade class in a neighboring school district.  Nellie followed up by calling the principal to learn more about the situation, but he told Nellie that it was a personnel matter that he could not discuss with her.  She then asked for all related records, but Mr. Principal further insisted that records related to the request for personal leave were confidential “personnel records” that he could not share with Nellie.

Meanwhile, Nancy Newshound, a reporter for the Nutmeg Bugle then got involved, asking Nellie for “all records relating to the scheduling of office hours and any and all follow-up communications.”  Nellie ignored Nancy’s request, hoping that she would simply go away.  However, after waiting four business days for a response, Nancy filed a complaint with the Freedom of Information Commission claiming Nellie had denied her access to public records.

Was Mr. Principal correct in denying Nellie access to the records related to Tom Teacher’s request for a personal day, and is Nellie in trouble with the Freedom of Information Commission?

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Before addressing these two specific questions, it is appropriate to review Nellie’s misunderstanding of the proper role of a Board member.  By statute, the superintendent is the chief executive officer of the board of education, and thus the superintendent is responsible for addressing day-to-day operational concerns.  By contrast, board of education members have a legislative responsibility to adopt policies to regulate the affairs of the school district. Moreover, board members may be asked to exercise a judicial responsibility in hearing matters identified by statute, including student accommodations and student expulsion matters, as well as teacher tenure and non-renewal.  But they have no jurisdiction over daily operations.

To be sure, board members also have an important oversight role.  Boards of education evaluate one employee – the superintendent – and in fulfilling that responsibility (as well as their legislative responsibilities), board members have a vital interest in how the superintendent and administration are addressing student, teacher and community concerns.  That interest, however, should be exercised in an oversight capacity, and not by direct involvement.  This is especially true for individual board members who, acting on their own, have no authority to speak or act for the board.

It looks like Nellie needs some training, and CABE regularly provides training for board members.  Indeed, going forward, training of newly elected board of education members will be required by statute.  Section 2 of Public Act 23-167 requires that the State Department of Education “offer a training program to newly elected members of local and regional boards of education,” which training must include “the role and responsibilities of a board member, the duties and obligations of a board of education and school district budgeting and education finance.”  Moreover, the statute expressly authorizes the Department to collaborate with CABE in developing such training.  Newly-elected board members must complete the training within a year of their election.  Id., Section 3.

More generally, Nellie would benefit from reviewing the CABE/CAPSS Governance Statement (Spring 2016), which lays out the respective responsibilities of board members and of superintendents.  Also, helpful guidance may also be found in “Success Strategies for Leadership Team Evaluation: Board of Education and Superintendent of Schools" (Fall 2015), a collaborative effort of CABE, CAPSS and LEAD Connecticut.  Conn. Gen. Stat. § 10-223l also provides that the State Department of Education “may” develop a “model school district responsibilities” agreement that “shall include, but need not be limited to, (1) a statement of guiding principles regarding the proper roles and functions of the board of education, the superintendent of schools for the school district and administrators . . .” among other things.  However, to date the Department has not followed up on this invitation to do so.

With the hope that Nellie develops a better understanding of her responsibilities as a board member, we can answer the two outstanding questions.

First, Nellie had no special right of access here to the records concerning Tom Teacher’s personal day request.  However, the documents related to his grievance are public records accessible to anyone under the Freedom of Information Act (FOIA).

Second, Nancy Newshound properly exercised her right under the FOIA to presume that Nellie was denying her request for records concerning Nellie’s office hours and follow-up.  Some of those records may contain FERPA-protected information about students, and they would be subject to redaction.  But in general records created by board members acting as such are public records, and Nancy will be able to obtain such records one way or the other.