Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
For the last five years as the principal of an elementary school, I have done my very best to stay under the radar of the board of education. I appreciate the public service of the board members and all, but they are really a bunch of nosy parkers who should get a life.
Why am I telling you this, you ask. Here is the situation…The first day of school a parent came to see me with a concern that his daughter was being bullied. I was, of course, appropriately sympathetic, and I tried to ask the father what we could do to help. But he kept getting louder and angrier, and then he started making vulgar verbal attacks on my staff and on me personally. He was impervious to my efforts to de-escalate, and finally I had to tell him that our meeting was over. Even then, he kept on shouting until I threatened to call the police. He finally agreed to leave, but not before he warned me that I would be hearing more from him.
Hear, I did. The father continued the attacks, except this time on social media. To read his posts, I am a heartless bureaucrat who chased him out of my office and hates students. Unfortunately, some of the Board members took notice of these attacks, and now I find myself the subject of an executive session discussion. On the whole, I’d rather be in Philadelphia, but I am thinking that it would probably be best for me to attend the executive session. Can I do that?
I Am Innocent
Here I must resort to the all-purpose answer to legal questions – it depends. The Freedom of Information Act (FOIA) specifies that public agencies may convene into executive session to discuss the “appointment, employment, performance, evaluation, health or dismissal of a public officer or employee.” The law does not give the employee being discussed the right to attend the executive session, and executive session is normally limited to members of the board. However, the FOIA also provides that executive session may include “persons invited by said body [here, the board] to present testimony or opinion pertinent to matters before said body.” Accordingly, the board is free to invite you to participate in all or part of the executive session to discuss this situation. You may wish therefore to convey through the superintendent your request to attend the executive session discussion and hope for the best.
There is a nuclear option, but most public employees do not exercise it. Specifically, in describing this reason for executive session, the FOIA goes on to say “provided that such individual may require that discussion be held at an open meeting.” In other words, the board can discuss how you handled this parent’s belligerence in executive session without you, but you can prevent the board from doing so if you elect to require that the discussion as to your performance be held in open session. A public discussion of this parent’s actions is not an attractive option for you, however, and I hope that you will be able to convince the board to discuss this matter in executive session with you present to explain your side of the story.