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SEE YOU IN COURT - October 2020

CABE Journal

October 1, 2020

The members of the Nutmeg Board of Education, masks and all, were happy finally to be meeting in person.  “I never thought I would say this,” Ms. Chairperson said as he called the meeting to order, “but I missed you guys, and it is great to be together again.  I look forward to a good meeting with all of you.”

Board member Mal Content did not share Ms. Chairperson’s bonhomie, and in fact he was anxious about the meeting.  “How can we be meeting here while the public still has to watch our meeting from home?  This sounds like an FOI violation to me.”

Veteran Board member Bob Bombast disagreed.  “Oh chill out, Mal!  Of course this is legal!  I am sure that Mr. Superintendent checked with Ms. Board Attorney and that we got the all clear.  Of course I am happy to be on television, but it is also nice to be here in person with my fellow Board members after all those Zoom meetings.”

Mr. Superintendent perked up when he heard his name.  “I admit that I had my doubts, because I thought that either we all had to meet remotely or we all had to meet in person.  But Ms. Board Attorney checked with Tom Hennick at the FOIC, and he gave us the all clear to meet in person and to permit the public to participate remotely.”

“You did well on that, Mr. Superintendent,” Bob Bombast responded.  “But I wish I could say the same for your making a deal with the Nutmeg Union of Teachers (NUTS) without involving or even telling the Board.  We Board members should be there whenever you make agreements with NUTS, and I was surprised to hear about the deal you made.”

Board member Penny Pincher was surprised by Bob’s comments, and she asked Bob to explain.  Bob responded that he’d read on Facebook that Mr. Superintendent made some special agreement with NUTS to deal with COVID-19 concerns related to opening school this year, and he asked Mr. Superintendent to explain himself.

“You are making a big deal out of nothing,” Mr. Superintendent replied.  “We planned all summer for our reopening, and I kept the Board apprised the entire time.  Once we had our plan in place, the teachers’ union came to me and asked to negotiate over the way our plans affected Nutmeg teachers.”

“But we negotiated with NUTS last year!” Bob interjected.  “I don’t know why we would have to negotiate with NUTS again already.”

Penny Pincher weighed in.  “Yes, for sure.  We can’t be negotiating with NUTS over every little thing.  Mr. Superintendent, the Personnel Committee does the negotiations around here.  What do you think you were doing?”

“I was just doing my job.  The issues NUTS raised over teaching during the COVID emergency all related to operational issues.  Don’t you remember the CABE Workshop we all went to?  You set policy, and I am responsible for running the show.”

Mal Content piped up.  “All I know is that the Board votes on negotiated agreements.  When will you be bringing the agreement to the Board for approval?”

“It’s a done deal,” responded Mr. Superintendent.  “We are all set.”

Did Mr. Superintendent exceed his authority by agreeing to a COVID MOA with NUTS here?

*         *         *

The problem in Nutmeg was one of communication, not of authority.  By statute, the superintendent is the “chief executive officer” of the board of education.  Board of education members are responsible for setting policy to regulate the affairs of the school district, a legislative function that includes setting the budget.  Board members can also serve a judicial function on certain occasions.  But operational issues are the responsibility of the superintendent, the chief executive officer.

Negotiations with teachers and other unions can and often also involve board members.  That makes good sense because negotiations often involve financial commitments.  Moreover, the rules set forth in negotiated agreements regulate district affairs in a manner similar to board policies.  The problem in Nutmeg was one of communication, not of authority.

In any event, such negotiations were consistent with district obligations under the Teacher Negotiation Act.  That law requires that boards of education negotiate with the teachers’ exclusive bargaining representative over “salaries, hours and other conditions of employment.”  Such negotiations are typically over the successor collective bargaining agreement, but teacher unions have the right to demand negotiations during the contract term when school districts make changes affecting working conditions.  Moreover, such “mid-term” negotiations are governed by Conn. Gen. Stat. § 10-153f(e), which gives the parties only twenty-five days for any such negotiations and then twenty-five days for mediation before arbitration is imposed.

In creating reopening plans in the time of COVID, school districts perforce changed working conditions, and teacher unions throughout the state exercised their rights to demand negotiations.  Many of these negotiations were simple affairs, handled directly by the superintendent and the administration, because the issues were operational and did not involve the commitment of new funds.  Other such negotiations have been more formal, including board negotiation committees and even mediation.  There is no one “right” way to handle such negotiations, but good communication between superintendents and boards of education on these issues is imperative.

Finally, clarification of the FOIA rules may be helpful as boards transition back to in-person meetings.  Under Executive Order 7B (March 14, 2020), Governor Lamont suspended FOIA requirements “to permit any public agency to meet and take such actions authorized by the law without permitting or requiring in-person, public access to such meetings” as long as certain well-known requirements are met, including assuring remote, real-time access for members of the public and recording the meeting.

 As boards of education and other public agencies move back to in-person meetings, the question arises whether public agencies may themselves meet in person while limiting the number people who can attend or even not allowing the public to attend the meeting at all.  Executive Order 7B provides public agencies the option to hold meetings without providing access to the public as long as they meet the conditions set out above.  Significantly, it does not prohibit public agencies from meeting in person.  Accordingly, it is permissible for boards of education to take a “hybrid” approach of meeting in person, but providing limited or no “in-person” public access to the meeting while assuring remote access to the public in accordance with Executive Order 7B.  For once, the Nutmeg Board of Education did something right!

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