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SEE YOU IN COURT - July 2020

CABE Journal

July 1, 2020

The members of the Nutmeg Board of Education have gotten used to participating remotely in Board meetings on Zoom in dress shirts on camera and sweat pants out of sight.  However, some members of the Board are suffering from “quarantine fatigue,” no more so than veteran Board member Bob Bombast.  Bob loves to play up to the crowd, and these remote meetings are cramping his style.

Under New Business at the meeting last week, Bob moved that the Board convene into executive session to evaluate the “performance of the Board.”  The other Board members were intrigued, and after Penny Pincher seconded the motion, the Board members voted unanimously to convene into executive session for that purpose.

Bob Bombast started the discussion with the following plea, “We need to reconnect with our public.  This remote meeting business is getting old.”

“Are you nuts?” Penny Pincher asked.  “I have zero interest in getting together with a bunch of people from God knows where, coughing and sneezing at me.”

Bob was quick to respond.  “You can just stay home and participate remotely.  The rest of us need to reengage the public, and nothing works better than having them sit and watch our meetings in person.”

Mr. Chairperson, however, was concerned.  “Are in-person meetings allowed?  I think that the Governor told all boards of education that they can’t meet in public.”

Bob pressed his point.  “I read the Executive Order 7B, and it just suspends the FOIA requirements for our meetings.  We can meet in person if we want!”

The Board members talked it through, and they gradually came to a consensus that the Board will continue to conduct its meetings remotely.  But it did decide as an interim measure to permit observers to offer public comment in real-time.  When the Board reconvened in open session, Mr. Chairman made the announcement.

“I have some good news!  The Nutmeg Board of Education has decided to permit members of the public to offer public comment ‘live’!  Starting with our next meeting, we will permit members of the public to ‘speak’ at the beginning of the meeting, limited to three minutes, in the order they sign up, for up to thirty minutes.” 

Nancy Newshound, ace reporter, for the Nutmeg Bugle, was curious as to how and when the Board made this decision.  Citing the requirement in Executive Order 7B that “any such meeting or proceeding [be] recorded or transcribed,” she promptly requested a copy of the Board’s recording of its executive session discussion, as well as a copy of the minutes that set forth the Board’s vote to change its procedure for permitting public comment.

Does the Board of Education have to give Nancy a copy of that recording?  Does the Board have any other FOIA problems?

*         *         *

At that one meeting, the Nutmeg Board of Education committed numerous FOIA violations, starting with the agenda.  The agenda for Board business must fairly apprise the public of the business to be transacted, and “New Business,” of course, is inadequate for that purpose.

The Board then violated the FOIA again when it convened into executive session for a discussion of the “performance of the Board.”  Executive session is permitted for discussion concerning the “performance [or] evaluation . . . of a public officer” (provided that such public officer does not require that the discussion as to him or her be held in open session).  Here, however, the discussion related to the Board as a whole, not to any individual member or members.  Accordingly, that discussion of Board operation was not privileged to executive session.

The Board committed a further FOIA violation when Mr. Chairperson announced the “consensus” the Board had reached in executive session.  To be sure, a board member participating in an executive session can infer from the discussion that a consensus has emerged.  However, boards are not permitted to take action by reaching consensus in executive session without voting in open session, as the Board did here.  Such action violates the requirement that the votes of each member of a public agency be recorded.  Nancy Newshound has certainly picked up on this violation, as evidenced by her request that the Board provide her with a copy of the minutes of the meeting when that decision was made, which of course do not exist.

Nancy’s request for a copy of the recording of the executive session raises an interesting question under Executive Order 7B and serves as a warning to boards.  Specifically, the FOIA rules concerning “meetings” and “records” are different, and these rules are not in alignment.  Public agencies may conduct confidential discussions at a meeting in executive session as provided by Conn. Gen. Stat. § 1-200(6).  However, an entirely different statute, Conn. Gen. Stat. § 1-210(b) governs what records are or are not confidential.  As but one example, boards of education may discuss the evaluation of the superintendent confidentially in executive session, but any recorded information about that evaluation is subject to public disclosure.

We note that Executive Order 7B suspends some of the in-person meeting rules of the FOIA, subject to certain requirements (e.g., the public agency must provide remote access, record the meeting, and post the recording on its website), but the Executive Order is silent on executive session.  However, the Order relates to “in-person” requirements, and the public is not permitted to attend an executive session in any event.  Therefore, it is reasonable to conclude that public agencies do not have to record executive sessions that are conducted remotely.  Indeed, to preserve confidentiality of such executive session discussions, public agencies should not record their executive sessions.  Given the difference between access to meetings and to records, such recordings may not be privileged.

Finally, the ability of boards of education to resume in-person meetings is an open question as of this writing.  Executive Order 7D, as modified by Executive Order TT, applies to “community” and “civic” events, and currently there is a limit of ten people for indoor activities or twenty-five people for outside activities.  While Executive Order 7N clarifies that Executive Order 7D does not apply to governmental operations, these limitations are nonetheless an appropriate model for boards of education to follow for now.  As with so much else with this pandemic, however, those rules are sure to change, and boards of education must monitor developments as they unfold.

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