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SEE YOU IN COURT! - November 2019

CABE Journal

November 1, 2019

Tom Teacher has long been employed by the Nutmeg Board of Education.  He has been a pain in the neck in recent years, complaining whenever he can about the “low salaries and lower respect” that he claims that Nutmeg teachers receive from the community in general and from the Nutmeg Board of Education in particular.  Last week, he posted on Facebook, complaining that his principal unfairly denied him three days of personal leave to attend Nature’s Classroom in a neighboring school district to serve as a chaperone for his fifth-grade son.  He even noted that his students agreed with him and that they think that the Principal was being “mean.”

Mal Content was elected last year to the Nutmeg Board of Education, and he has an active social media presence.  Tom Teacher is among Mal’s 500+ friends on Facebook, and Mal read Tom’s post with concern.  He called Tom up, and Tom unloaded on Mal, telling him how insensitive Mr. Principal is: “The guy must really hate parents!  He can’t even grant my request to accompany my son to Nature’s Classroom!  He isn’t fit to be with kids!”

Mal has never had much use for Mr. Principal, and he wanted to find out for himself what possible justification Mr. Principal could have for denying Tom’s simple request.  Accordingly, he popped in on Mr. Principal unannounced and offered his unsolicited view that Mr. Principal’s decision to deny Tom’s request was “cold.”  For his part, Mr. Principal was surprised that a Board member would challenge him on an operational issue, and he politely told Mal that his response to Tom was none of Mal’s business.  But Mal just told Mr. Principal, “We’ll see about that!” and left.

In the meantime, Tom Teacher called Bruno, his representative from the Nutmeg Union of Teachers (NUTS), about filing a grievance.  Bruno told Tom that there wasn’t much that NUTS could do for him, given that he is not a member.  But Tom had read the collective bargaining agreement, and Tom told Bruno that he would just go ahead and file a grievance on his own, which he did.

As expected, both Mr. Principal and Ms. Superintendent denied the grievance, and it has come to the Board for a hearing.  A committee of the Board, composed of Bob Bombast, Penny Pincher and Mal Content, convened the hearing in executive session.  When Mr. Principal saw Mal sitting in judgment, he objected, stating as politely as he could that Mal should recuse himself because his (Facebook) friendship with Tom is a conflict of interest.  Mal bristled at the suggestion, and he told the other Board members that he was perfectly capable of hearing the grievance and had no conflict of interest.

When the hearing started, Tom claimed that he should have been granted personal leave because Nature’s Classroom is an event that cannot be scheduled outside of school hours.  For his part, Mr. Principal explained that teachers teach only 180 days per year, and the Board should not set a precedent by granting this grievance.

The Committee thanked the parties for their presentation, and it moved to go into deliberations.  At that point, Bob Bombast, who was chairing the hearing, asked Mr. Principal to stay behind and join the Board in its deliberations.  However, Tom objected vehemently, claiming that Mr. Principal’s participating in deliberations would be unfair.

Does Tom have a valid objection?

*         *         *

Tom has no valid objection to the Board’s including Mr. Principal in its deliberations.  Grievance procedures and contract provisions are products of the collective bargaining process, as are the related deliberations.  In considering a response to a grievance, a board of education has every right to confer with the administration, just as it would on any other collective bargaining issue, such as negotiations.

By contrast, there are statutory provisions that impose upon boards of education the obligation to adjudicate the rights of students and teachers, including expulsion hearings, residency hearings, transportation hearings and tenure hearings.  In each case, the board of education is fulfilling a statutory duty to determine the rights of students or teachers.  As such, the board of education must afford the party requesting the hearing due process, and due process requires that the case be heard by an impartial decision-maker.  Just as a judge in court, board members must refrain from ex parte communication with the superintendent or the other party, and board members should decide such cases on the evidence presented in the hearing.

Board members should also be aware of the special rules that apply to board-level grievance hearings under the Freedom of Information Act.  The FOIA defines a “meeting” as including “any hearing or other proceeding of a public agency,” and in the first instance a grievance hearing is a meeting that must be posted and convened in open session.  However, if the hearing has to do with the “appointment, employment, performance, evaluation, health or dismissal of a public . . . employee,” the board can conduct the hearing in executive session unless the employee requires that the matter be heard in open session.  Moreover, the Connecticut Supreme Court has ruled that the deliberations that follow a grievance hearing may be conducted as a private “non-meeting” related to collective bargaining strategy.

Tom’s grievance raises a number of other legal issues.  First, Mal Content has intruded into administrative decision-making by confronting Mr. Principal about his decision to deny Tom personal leave, thereby violating the boundaries of appropriate board member conduct.  But just as Tom did not have a valid objection against Mr. Principal’s participating in deliberations on his grievance, Mr. Principal could not validly claim that Mal had a conflict of interest in hearing the grievance; Mal may have been overly involved, but he was not acting out of self-interest.

We also note that Tom was apparently talking to his students about his grievance.  Mr. Principal should take Tom to task for such inappropriate conduct.  Tom may or may not have a First Amendment right to complain on Facebook about Mr. Principal’s decision.  But it is clear that Tom has no First Amendment right to involve his students in his personal dispute with Mr. Principal.

Finally, we note that NUTS balked at representing Tom because he is not a member of the Union.  NUTS should be careful.  We note the decision of the United States Supreme Court last year in Janus v. AFSCME, ruling that mandatory service fees are unconstitutional, and thus unit members are free to join and support the union or not.  However, as the exclusive bargaining representative, the union has a duty of fair representation to represent all unit members fairly.  That does not mean that NUTS must support Tom’s grievance.  But it must make its decision in good faith on the facts, not on whether Tom is a member of the Union.

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