See You In Court! - October 2018

by Shipman & Goodwin LLP
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Mr. Chairperson has had his hands full with two new members of the Nutmeg Board of Education.  Mal Content and Chrissie Critical were elected to the Board just last November, but they quickly started antagonizing Mr. Chairperson and the other Board members. Nothing, it seemed, was right in their view. Mal and Chrissie complained at the Board meetings about the “do-nothing” Board, and they repeatedly complained by email to all the other Board members. Some Board members tried to respond to their concerns by return email, but the disaffected two were unmoved and continued to find fault with the Board.

Mal and Chrissie were frustrated, they claimed, because Mr. Chairperson was thwarting their reform efforts. They had both repeatedly asked that an item be added to the Board meeting agenda – appointment of a special counsel to investigate Board member collusion with Seymour Dollars, venerable Chair of the Nutmeg Board of Finance. They claimed that Seymour was pulling the strings on Board decision-making, and they wanted the other Board members to be questioned under oath as to what Seymour Dollars has said to them and when he said it. They even suggested that Mr. Chairperson take an straw poll of the Board members by email, claiming that he would find that a majority of the Board members agree with their request. However, Mr. Chairperson stonewalled them, telling them that such a witch hunt would not be allowed on his watch.

Finally, the other Board members had had it with the disaffected two, and speaking for the others, veteran Board member Bob Bombast proposed at a special meeting to add an item to the agenda – “Executive session for the purpose of evaluation of the performance of two difficult Board members.” Before the motion could even be seconded, however, Mal spoke up, stating the any discussion as to his efforts to straighten out the “dysfunctional” Board of Education should be held in open session. Chrissie weighed in as well, claiming that she would not be a party to any attempt secretly to defame her and interfere with her efforts to clean house.

“Never mind,” Bob responded. “If we can’t have a candid discussion about these two trouble-makers in executive session, we’ll just have a more general discussion in executive session about Board operation.” With that, the Board voted to convene into executive session. Not surprisingly, however, the discussion of “Board operation” soon devolved to an angry exchange between the other Board members and Mal and Chrissie about how they as Board members were misbehaving.

Mal and Chrissie were unchastened, and they decided to pursue their crusade through FOI requests. They asked for any and all email communications between and among any member of the Board and/or with Seymour Dollars concerning budget matters. Pushing hard, they demanded that all such emails be produced within four business days, “in accordance with the Freedom of Information Act,” they said.

Mr. Superintendent responded within four business days, informing Mal and Chrissie that the district is working on their request, but it will take some weeks to find, review and produce all of the emails.

Can Mal and Chrissie file an FOIA complaint, and will they win?

*   *   *

Mal and Chrissie do have a valid FOIA complaint. However, that complaint would relate to the executive session, not the email request. The FOIA provides that public agencies must respond “promptly” to FOIA requests, and it provides further that a requesting party may conclude that a request has been denied after four business days. Here, Mr. Superintendent acknowledged the request, and as long as the district gathers and provides the information “promptly” (an all-facts-and-circumstances standard), there will be no FOIA violation in the district’s response to the request for emails.

By contrast, the Board did violate the FOIA by discussing how Mal and Chrissie were performing as Board members in executive session. The Board had no right to convene into executive session to discuss “Board operation” in any event. The FOIA does provide that a public agency can convene into executive session to discuss the “appointment, employment, performance, evaluation, health or dismissal of a public officer or employee.” Significantly, however, just as with employees, individual board members (as “public officers”) may require that the discussion as to them be held in open session. Accordingly, the Board violated Mal’s and Chrissie’s rights when the Board discussion in executive session included the performance of these two Board members.

One of the complaints Mal and Chrissie were making was about Mr. Chairperson’s refusal to grant their request to add an item to the agenda. Rather than complain, they should have checked the Board Bylaws, which should address the process by which matters can be added to the agenda. The chairperson typically has the responsibility for setting the agenda in consultation with the superintendent. However, board bylaws often set forth a process by which other board members can request that items be added to the agenda. Most common is a provision stating that three or more board members can require that an item be added to the agenda. Such provisions derive from Conn. Gen. Stat. §10-218, which provides that, when the chairperson doesn’t call a meeting within fourteen days of being requested, three board members may do so.

Mal and Chrissie may have their own problems under the Freedom of Information Act. Mal and Chrissie, for example, suggested that Mr. Chairperson should conduct a straw poll by email. Such action would have violated the FOIA because, as a gathering of a quorum by electronic means to discuss Board business, such a straw poll would be an unposted illegal meeting.

Similarly, Mal and Chrissie continued discussion of their complaints with the Board members by email outside of a legally-posted meeting. They were free to do so if their communication was unilateral, i.e., from them to the other Board members. However, as soon as Board members responded by email to Mal’s and Chrissie’s complaints with a quorum of the Board members on the email, then the Board was discussing Board business outside a posted meeting in violation of the FOIA.

Finally, Bob Bombast and the Board violated the FOIA when the Board added discussion of “Board operation” to the agenda of the special meeting. The FOIA permits public agencies to add items to the agenda of a regular meeting by a two-thirds vote of those present and voting. There is no similar provision in the FOIA for adding items to the agenda of a special meeting, and at such meetings public agencies must limit their discussion and action to the matters listed on the special meeting agenda.

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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