As the Nutmeg Board of Education was preparing to reconvene into open session after completing its executive session discussion last week, veteran Board member Bob Bombast told the Board to hold up because he had a concern.

Mr. Chairperson recognized Bob, “OK, Bob, but it’s late so keep it short.”

Bob thanked Mr. Chairperson and explained, “I heard from a friend that Tom Teacher has been on Facebook trashing the Board. I want to know what Mr. Superintendent is going to do about it.”

Mr. Superintendent looked puzzled. “I have no idea what you are talking about. I have better things to do than to monitor the social media accounts of the 500 teachers in Nutmeg. Who’s this ‘friend’ talking about Tom Teacher behind his back? And what is Tom Teacher supposed to have said?”

“I am not going to reveal my source,” Bob responded. “But he told me that Tom Teacher has posted on Facebook that the members of the Nutmeg Board of Education are idiots and that Mr. Chairperson couldn’t find Robert’s Rules of Order with both hands and a flashlight.”

Now Mr. Chairperson shared Bob’s concern. “We need to get to the bottom of this. Mr. Superintendent, I want you to meet with Tom Teacher ASAP and report back to the Board. It’s bad enough that we have to put up with parents slamming us on social media. But we don’t have to let our own employees take shots as well.”

Mr. Superintendent wasted no time. The next day, he called Tom Teacher down to the central office and laid it on the line. “We have it on good authority that you have been insulting the Board on your Facebook page. I am directing you to sign on to your Facebook account so I can see just how bad it is.”

Tom smirked at the directive, but he complied. Soon, Mr. Superintendent was leaning over Tom’s shoulder and reading Tom’s Facebook page. “So, it’s true!” he exclaimed. “Your posts are just as bad as I thought.” Mr. Superintendent then placed Tom on leave and printed out the offensive posts.

Mr. Superintendent had the posts scanned, and he sent them by email to the Board members. However, before Mr. Superintendent could follow up with a call to Mr. Chairperson, the phone rang. The President of the Nutmeg Union of Teachers was on the line. She explained that she did not agree with Tom’s rants on Facebook, but she asked Mr. Superintendent to drop the matter and return Tom Teacher to duty.

“Tom Teacher has the right to express his opinion about the Board members and to share it with the world. Remember the First Amendment?” she chided.

Mr. Superintendent reflected on whether he would rather fight with Tom Teacher and NUTS or with the Board members who employ him, and he chose the former. “Sorry, but we cannot put up with teachers undermining the good work of the Board of Education. Tell Tom Teacher that he has twenty-four hours to submit his resignation or I will initiate termination proceedings,” he responded.

Is Mr. Superintendent on solid ground?

*         *         *

No, he is not. Tom Teacher has free speech rights here. Moreover, both the Board and Mr. Superintendent violated other rights Tom Teacher has.

The problem started when Bob Bombast talked about Tom Teacher during the executive session. That discussion was improper because the topic was not on the agenda. Moreover, the Board never notified Tom that it would discuss his employment in executive session. Boards of education (and other public agencies) have the right to discuss the “appointment, employment, performance, evaluation, health or dismissal” of their employees and other public officials (including themselves) in executive session. However, the individual discussed has the right to require that the discussion as to him or her be held in open session, and public agencies are thus required to notify the individual in advance of the discussion to permit him or her to exercise this right.

Mr. Superintendent also violated a relatively new right employees have. In 2015, the General Assembly enacted Conn. Gen. Stat. § 31-40x, which provides in relevant part that employers generally may not “(2) Request or require that an employee or applicant authenticate or access a personal online account in the presence of such employer.” Persons whose rights are violated may file a complaint with the Connecticut Department of Labor, which has the right to “levy against the employer a civil penalty of up to five hundred dollars for the first violation and one thousand dollars for each subsequent violation, and (2) award such employee all appropriate relief including rehiring or reinstatement to his or her previous job, payment of back wages, reestablishment of employee benefits or any other remedies that the commissioner may deem appropriate.” Conn. Gen. Stat. § 31-40x(g).

Finally, Tom’s comments on his Facebook page are protected speech under the First Amendment. In considering the free speech rights of public employees, we start by separating speech “pursuant to duty” from speech more generally. One speaks “pursuant to duty” when fulfilling one’s job responsibilities, and the United States Supreme Court has ruled that such speech is not subject to First Amendment protections. If Tom had described the Board members as “idiots” at a Back-to-School Night, for example, that speech would not be protected, and Tom would be subject to discipline (though termination for a first offense would likely be too extreme).

By contrast, when a public employee engages in speech as a private individual, he or she has First Amendment protection, subject to the following. First, the speech must relate to a public concern; speech regarding private, personal grievances is not protected. Here, the cognitive ability of the members of the Nutmeg Board of Education is a matter of public concern on which Tom was free to comment.

Second, the courts will apply a balancing test to determine whether such speech is protected by the First Amendment, i.e., the courts will consider whether the importance of the speech outweighs its disruptive impact. Most such speech is not truly disruptive at all. A common concern regarding disruption, however, is whether the speech will affect close working relationships. Given that concern, Mr. Superintendent, for example, should certainly keep his opinion on the Board members’ cognitive ability to himself. However, Tom does not work directly with the Board, and his harsh judgment will not be disruptive of district operation. As such, it is protected speech.