See You In Court! – February 2017

by Shipman & Goodwin LLP
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This budget season has been the worst in memory for the Nutmeg Board of Education.  Next year will be the second year of a three-year contract with the Nutmeg Union of Teachers (NUTS), and that contract includes a salary increase of over three percent.  Moreover, health insurance costs are projected to increase by more than twice that amount.  At the same time, the State has reduced school aid, and Seymour Dollars, the irascible Chair of the Nutmeg Board of Finance, has already stated publicly that the Board of Education will have to tighten its belt because funding for the Board of Education will be flat next year.

As Finance Committee Chair, veteran Board member Bob Bombast has been cajoling his colleagues on the committee over email to make a demand on NUTS to open up the contract for concessions.  Penny Pincher responded that Bob should knock himself out, but that there is no way that NUTS will agree to give-backs.  Bob shot back in a terse email that, of course, he knows NUTS won’t play ball with give-backs, but when the Board takes NUTS to arbitration, it may get some relief.

Bob made the demand for concessions from NUTS, but the response from NUTS was swift and unequivocal – no concessions now or ever.  To make matters worse, Bob could not get the Board to push the concession discussions to arbitration, and thus Bob and the Board were forced to look elsewhere for reductions.

Again over email, Bob told his colleagues that the only way to come in with a reasonable budget increase will be to lay off a number of teachers and other employees.  The other members agreed, and the Committee proposed a 2017-2018 budget at the next Board meeting that provides for 20 teacher layoffs and a two-percent increase.

Mal Content, a new Board member, took issue with the proposed budget.  “How can I agree to cut teacher positions if I do not know what they are?”

For once, Bob responded with equanimity.  “That is more than fair,” he responded.  “However, it is early, and we are not exactly sure what positions will have to be cut.  But we can start by notifying all the non-tenured teachers that their contracts will not be renewed.  That will give us some breathing room for now, and we can sort out later which of them will actually get laid off.”  With that, Bob moved, Penny Pincher seconded, and the Board voted to direct Mr. Superintendent to notify all non-tenured teachers that their contracts of employment will not be renewed for next year.

The Board then approved the proposed budget with a two-percent increase over last year, and sent it on to the Board of Finance for action.  As expected, Seymour Dollars was “outraged” that the Board of Education would “dare” to submit a budget with a two-percent increase in these “dark days.”  Seymour and the Board of Finance rejected the increase proposed by the Board of Education, and it adopted a flat budget.  Adding insult to injury, the Board of Finance also conveyed to the Board of Education a number of suggestions for so-called “efficiencies,” including consolidating all purchasing through the Town and having the Town do all building maintenance.

Bob and the rest of the Board members were incensed by Seymour’s actions.  Bob promptly tweeted that Seymour has no business interfering with Board of Education and that it would be a cold day in hell before the Nutmeg Board of Education would dignify Seymour’s meddling with a response.

Do you see any problems here?

*        *        *

These are indeed “dark days,” and boards of education throughout Connecticut face terrible challenges in the budget process this year.  However, that process may go a little easier if boards of education do not make the mistakes that Nutmeg made.

Taking the last issue first, Bob was wrong to tweet that the Board would not respond to Seymour’s suggestions.  In 2013, the General Assembly amended Section 10-222, the statute governing the school budget process, adding “The board or authority that receives such estimate shall, not later than ten days after the date the board of education submits such estimate, make spending recommendations and suggestions to such board of education as to how such board of education may consolidate noneducational services and realize financial efficiencies.”  Seymour’s suggestions may have been unwelcome, but they were consistent with statute.  Accordingly, Bob’s decision to ignore Seymour’s suggestions violated the statute, which goes on to say that “Such board of education may accept or reject the suggestions of the board of finance, board of selectmen or appropriating authority and shall provide the board of finance, board of selectmen or appropriating authority with a written explanation of the reason for any rejection.”  (Emphasis added).

Bob was also incorrect in his understanding of concession bargaining.  This year boards of education may have to make requests of their unions for wage and other concessions to reduce costs.  However, when a collective bargaining agreement is in place, the board of education may only ask, and cannot demand, that the union engage in such negotiations.  If the union refuses, as NUTS did here, there will be no negotiations, and thus the board will not be able to seek relief through arbitration.

Bob’s brainstorm about non-renewing non-tenure teachers was another bad idea, as it could expose the Board to increased costs.  Teachers and other employees who work for academic institutions, including boards of education, are not entitled to unemployment compensation when they are not working between academic terms, here during the summer, provided that they have a reasonable assurance of reemployment in the following term.  Any non-tenure teacher who has received notice of non-renewal, however, does not have that reasonable assurance, and will thus be eligible for unemployment compensation over the summer.  Boards of education should thus avoid notifying more non-tenured teachers of non-renewal than is necessary, and in any event they should notify teachers who will be recalled before the summer break if possible.

Finally, we note that Bob did some Board business with the Finance Committee over email.  Interestingly, the first series of emails was fine, because they dealt with collective bargaining strategy (concession bargaining with NUTS), which topic is excluded from the definition of “meeting” under the FOIA.  By contrast, the second email exchange dealt with layoffs, a budget issue unrelated to collective bargaining.  By exchanging emails on that subject, Bob and the other members of the Finance Committee risked a finding that the Committee “discussed” the public’s business over email, thereby holding a “meeting” without posting or providing access to the public as required by the FOIA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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