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SEE YOU IN COURT - September 2020

CABE Journal

September 1, 2020

After much discussion and lengthy planning by Mr. Superintendent and his team, the Nutmeg Public Schools were ready to open for the 2020-2021 school year.  Mr. Superintendent and the professional staff had worked day and night, and in mid-August, Mr. Superintendent presented the plan to the Board for its information.  During public comment at that meeting, Bruno, President of the Nutmeg Union of Teachers, was highly critical of the plan.  “It is crazy to ask teachers to teach students in class and simultaneously share that live instruction by videoconference with students learning remotely!” Bruno railed.  “Hasn’t Mr. Superintendent ever read FERPA??”

After his thee minutes were up, Bruno sat down, and the Board members started discussing the plan.  Most of the Board members were appreciative of the staff’s hard work, and they complimented the administration on the “well-designed plan.”  However, new Board member Rick Rogue had only critical remarks to offer.  Rick echoed Bruno’s concern about FERPA, and he expressed grave concern about the “dangers” of reopening school in any fashion during a pandemic.

The other Board members chastised Rick for his overly-negative views, and they reminded him of the importance of getting students back in school for their own social and mental health.  Mr. Chairman ended the discussion with the observation that challenging times require difficult decisions, and that reopening schools was the best choice.  The meeting ended with most of the Board members thinking that was that.

Rick had other ideas.  The next day, he called Bruno and asked what he could do to support NUTS in its opposition to reopening schools.  Bruno was surprised to receive the call, but he was quick to make common cause with Rick.  He set up a secret meeting with Rick and the NUTS Executive Board to plan a course of protest and, possibly, teacher civil disobedience against the reopening plan. As the meeting was ending, Rick shook hands all around, asking, “Let’s keep this between us, OK?”

It was not to be.  One of the teachers present promptly went on Facebook to describe the meeting and Rick’s role in it.  The word quickly spread, and, enraged at Rick’s disloyalty, several Board members vowed to “take care of #%$*@ Rick.”

At the beginning of the next meeting of the Nutmeg Board of Education, veteran Board member Bob Bombast was ready.  “Mr. Chairperson,” Bob interjected just as the meeting was starting, “We need to add an item to our agenda – censure and removal of Rick Rogue from the Nutmeg Board of Education.”  The motion was seconded and easily passed, with only Rick voting against. 

Bob Bombast then started in.  “We are a Board of Education.  I have lost my fair share of votes, but I have never betrayed my Board.  But Rick here has been conspiring with NUTS to undermine the reopening plan.  Rick Rogue must go!”

Mr. Chairperson asked Rick was he had to say for himself, but Rick just said he wanted a lawyer.  Mr. Chairperson then opened up the discussion to the other Board members, and one by one they accused Rick of disloyalty based on the Facebook post and the community chatter.  When the discussion was over, Bob moved that the Board censure Rick for “traitorous behavior,” and the motion passed.

Was the action of the Nutmeg Board of Education appropriate?

*         *         *

Rick’s behavior notwithstanding, the Board’s actions were improper in several respects.  Apparently even Bob ultimately realized that the Board could not remove Rick from office, because he limited his motion to censuring Rick.  There is no provision in Connecticut law for recall or other removal of a board of education member.  The public policy is to let the voters decide in the first instance and then let them decide again if the board member runs for office for a new term.

Even as limited, the Board’s vote to censure Rick was problematic.  Robert’s Rules of Order, the parliamentary procedure that guides the operation of virtually every board of education in Connecticut and elsewhere, regulates disciplinary action that a body can take against one of its members.  Here, this “disciplinary action” of censure violated the rules of parliamentary procedure in a number of ways. 

The touchstone of the disciplinary procedures in Robert’s Rules is fairness, and the procedures the Nutmeg Board used here were anything but fair.  Section 61 of Robert’s Rules (11th Ed. 2011) describes discipline as “a drastic step reserved for serious situation,” and advises that “it is usually in the best interest of the organization first to make every effort to obtain a satisfactory solution of the matter quietly and informally.”  However, quiet resolution of issues of misconduct will not always be possible, and Robert’s Rules provides guidance as to the disciplinary process.

First, it is important to note that there is a fundamental difference in the disciplinary procedures for offenses that occur during a meeting and those that occur outside a meeting.  The basis for disciplinary action for misconduct that occurs at a meeting is clear to all, because the other members of the body were witnesses to the misconduct.  Based on their own observations, the other members of the board have the factual basis on which to determine whether discipline of a board member is proper.

When alleged misconduct occurs outside of a meeting, as was the case here, the situation is far different.  Robert’s Rules, Sections 61 and 63, outline the requirements for disciplinary proceedings for alleged misconduct outside a meeting.  In such cases, the board members have no personal knowledge of the circumstances, and therefore fact finding is required before proceeding.  Robert’s Rules provides that the body should create a committee to find the facts and report back to the body.  Such report should then be provided to the alleged wrong-doer as notice of the allegations, and the body is then responsible for holding a “formal trial” and deciding on a consequence.  Truly egregious misconduct should be referred to the courts for relief, but board disciplinary proceedings are typically inadvisable otherwise, because censure is the only available remedy and a formal trial will distract the board from its educational mission.

Finally, as many district plans include live streaming of classes to students learning remotely, some have asked whether such live streaming violates FERPA, the federal law providing that educational records are confidential except for circumstances specified in the law.  FERPA defines "education records" as “records that are: (1) Directly related to a student; and (2) Maintained by an educational agency . . . .”  Live streaming is a modality of instruction, not a record, unless and until the information is maintained with regard to a specific student.  FERPA violations are always an unfortunate possibility, whether in class, at the grocery store, or in live streaming.  But live streaming per se does not raise concerns regarding the protections of FERPA.

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