SEE YOU IN COURT! - March 2015 CABE Journal

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CABE Journal - March 2015

The Residents Against New Taxes (RANT) launched a new high tech online campaign this year to recruit new members in Nutmeg.  RANT members attend every meeting of the Nutmeg Board of Education, and in large numbers they sign up for Public Comment.  However, they then “yield” their time to Ralph Retiree, their flamboyant President, who then carries on for twenty minutes or more each meeting.  RANT loyalists videotape Ralph’s speeches during Public Comments each meeting, and they then post the video on the RANT website, cleverly edited as Ralph talks with cuts back and forth of embarrassing shots of the Board members yawning or worse.

This week, Ralph claimed that the Board was somehow in violation of the law by not making line-item transfers at each meeting.  “Every month I come to the Board meetings,” Ralph proclaimed, “but I never hear a thing about transfers.  I guess the Board of Education just lets its accounts run willy-nilly into deficit.”

This claim was too much for Board member Penny Pincher, and she interrupted Ralph’s rant.  “Careful, Ralph.  You don’t know what you are talking about.  Each month we receive a report from Mrs. Superintendent, who tells us what transfers she made and how are accounts are all up to date and in the black.  If you keep it up, you might find yourself on the other end of a defamation lawsuit.”

Ralph was unperturbed, and he simply told Penny “quid est demonstratum.”  Penny had no idea what he was talking about, but she didn’t like it a bit.

Veteran Board member Bob Bombast went home that night and took at look at the RANT website.  He was shocked by the disrespectful and intentionally embarrassing videos of the Board members as they scratched, stretched or otherwise looked bored.  Moreover, the posts of Ralph’s speeches on behalf of RANT during Public Comment were even more annoying online than hearing them live.  Bob vowed to put an end to this assault on his beloved Board of Education.

Bob hatched a plan that he then shared with his colleagues via Facebook.  RANT members were all over his post with ridicule about Bob’s “thin skin,” but several Board members posted supporting comments, and thus encouraged, Bob brought his plan to the next meeting of the Nutmeg Board of Education.

“RANT has crossed the line in videotaping me scratching my nose and then posting it online.  We may not be able to force RANT to respect the work of the citizen volunteer members of the Board of Education, but we can make sure that they do not mock us unfairly.  I move that we prohibit videotaping of Board members during Board meetings.  Moreover, we must shorten Ralph’s endless harangues.  From now on, I move, those who sign up for public comment cannot give their minutes to Ralph.  Ralph gets the same two minutes as everyone else.

The Board members promptly voted unanimously in favor of Bob’s motions, and Bob immediately told the RANT contingent to put down their smart phones and stop taping.

Does RANT have anything to say here?

*        *        *

Yes.  As usual Bob has gone overboard in his reaction to RANT, and RANT may well challenge part of his plan as illegal.

First, Bob did say one thing that makes sense.  When a board of education has Public Comments or a similar agenda item, it creates a forum for free speech.  However, the courts have held that reasonable time restrictions are permissible as long as they are applied equally without regard to the content of the speech.  Thus, the Board can limit Ralph to the same two minutes (or whatever) that other speakers have, and the Board need not permit others to “yield” their minutes to Ralph or anyone else.

However, Bob’s plan to prohibit recording of the meetings of the Board of Education violates the Freedom of Information Act.  Conn. Gen. Stat. Section 1-226(a) provides that meetings “may be recorded, photographed, broadcast or recorded for broadcast . . . .”  The statute does provide that “the photographer or broadcaster and its personnel, or the person recording the proceedings, shall be required to handle the photographing, broadcast or recording as inconspicuously as possible and in such manner as not to disturb the proceedings of the public agency.”  Moreover, the statute permits public agencies to adopt rules concerning recording the meeting in advance.  However, any such rules must relate to assuring that the meeting is not disrupted, and they may not give the Board editorial control over the recording.

Ralph also made a point on behalf of RANT concerning line item transfers.  Conn. Gen. Stat. Section 10-222 gives boards of education the authority to make line item transfers and otherwise to expend its appropriation in its discretion.  However, it also imposes obligations on boards of education.   Back in 1998, the General Assembly amended this statute to provide that boards of education “may, by adopting policies and procedures, authorize designated personnel to make limited transfers under emergency circumstances if the urgent need for the transfer prevents the board from meeting in a timely fashion to consider such transfer.”  In such cases, the transfer must be announced at the next meeting of the board of education, and since 2013 “a written explanation of such transfer [must also] be provided to the legislative body of the municipality or, in a municipality where the legislative body is a town meeting, to the board of selectmen.”

In some districts, apparently Nutmeg included, these requirements have not been observed, as the board simply leaves to the superintendent the responsibility to keep an eye on expenditures (usually including a monthly report to the board).  However, the statute contemplates that line items should not be over-expended, and boards of education should thus make line item transfers as necessary to avoid having any line item in deficit.  To make this obligation manageable, boards of education should define “line item” broadly by reference to the following language which was also added to the statute in 2013:  “‘itemized estimate’ means an estimate in which broad budgetary categories including, but not limited to, salaries, fringe benefits, utilities, supplies and grounds maintenance are divided into one or more line items.”  By defining broad budgetary categories to be “line items,” boards can keep the necessary transfers to a minimum, and can avoid the need for special transfers with the attendant reporting.

Finally, while Bob had the right to post his plan on Facebook, further comments by other Board members in related posts should be avoided.  At some point, the exchange of views by a quorum on Facebook (or email, etc.) could be viewed as discussion of board business outside a meeting, a violation of 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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