Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
Last month, the fifth grade classes at my school went on a field trip to a canning factory. In hindsight, it was not my finest moment as a principal. I was late in having the teachers send out the notice of the trip, and, on the first pass, I forgot to make sure that teachers would get parent signatures on a permission slip for their children to participate. With some last-minute drama, I got the signature issue straightened out. But these particular fifth graders were more rambunctious than I anticipated, and the number of chaperones was apparently inadequate. I learned later that students were running amok in the canning factory. Fortunately, no students, teachers or chaperones were injured. However, the manager of the factory was so upset with the students’ behavior that he wrote an open letter in the Nutmeg Bugle, in which he criticized our inadequate supervision of the students and wondered aloud what the future holds for these “little savages.”
After the letter appeared in the newspaper, I was called to the superintendent’s office and she dressed me down for the poor planning and execution of this field trip. As if that weren’t bad enough, I just received a letter from the superintendent informing me that the board of education will be discussing my performance in executive session next week. I know I have some explaining to do, but I think that things will go better for me if I appear in person and take my lumps. Can I insist on attending the executive session?
At the outset, I applaud you for your candor. We all make mistakes, and it is refreshing to hear you own up to yours. However, you are not in any position here to demand to attend the executive session.
Boards of education must hold most of their discussion in open session, but the Freedom of Information Act provides that boards of education (and other public agencies) can conduct certain discussions in executive session. The first reason for executive session set forth in Conn. Gen. Stat. Section 1-200(6) is:
Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting
As you see, the ability boards of education have to discuss personnel issues in executive session is limited by the fact that the individual public officer or employee being discussed can require that the discussion be held in open session. Thus, your difficult choice here is either to let the board go ahead with its discussion without you there to defend yourself, or to require that any board discussion of your performance be held in open session. While leaving that decision to you, I simply observe that forcing a board of education into a public discussion of a personnel issue is not the best way to be popular.
It is possible that the board may invite you to attend some part of the executive session so that its members can ask questions and you can answer those questions and otherwise explain. Section 1-231 of the FOIA provides:
At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons’ attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.
The board of education could certainly find your “testimony or opinion” pertinent to its discussion of your performance on the field trip, and, with your superintendent’s help, I hope that the board will allow you to participate in the executive session discussion. But, ultimately, that is for the board to decide. At least the summer vacation is here . . . .