The Nutmeg Board of Education, indeed the entire Nutmeg Public Schools community, was breathing easier with the end of mask mandates.  But newly-elected Board member Nellie Nervous remained concerned.  At the February meeting of the Board, Nellie shared that concern with her fellow Board members and the public.

“I am worried,” she began.  “Everyone is happy that our students and teachers now have the option of wearing their masks or not.  But the CDC is still recommending that students wear masks, and I think that we should mandate masks on our own.  We are creating an unsafe school environment by not following the science and continuing to mandate masks.”

Veteran Board member Bob Bombast scoffed.  “If the State doesn’t mandate masks in schools, how could we?  The simple truth is that we don’t have the authority to impose such mandates.”

But Nellie continued the debate.  “When the CDC recommends masks, we are derelict if we do not require them.  If someone gets COVID at school, we are going to get sued.  I don’t know about you, but I don’t want to hire a lawyer, let alone pay damages to someone who gets COVID in our schools.  I move that we continue with the mask mandate for anyone entering the Nutmeg Public Schools until the CDC withdraws its recommendation for masking in our schools.”

Ms. Chairperson waited for a second, but there was none, and Nellie’s motion failed.  Moreover, when the State mask mandate ended at the end of February, Mr. Superintendent and the Nutmeg Public Schools lifted the mandate that students, teachers and visitors wear masks in the schools, though officially they did recommend that all continue to wear masks.

Last week, Nellie was upset when she answered a knock on her door at home and was greeted by a sheriff serving her with a complaint.  The parent of a Nutmeg student is suing all the members of the Board of Education as well as Mr. Superintendent.  The parent claims that the Board was negligent in not mandating that everyone wear a mask while in the Nutmeg Public Schools, which failure, she further claims, caused her child to contract COVID.  From what Nellie could determine from the complaint, the parent is demanding unspecified damages in excess of $15,000.

Nellie promptly sent an “I told-you-so” email to Mr. Superintendent and her Board colleagues, reminding them that she had warned them about the risk of liability.  Mr. Superintendent, however, ignored Nellie’s email, and instead sent an email to all the Board members, telling them that they should not worry about the complaint.  With the email, Mr. Superintendent included the posting of a special meeting, the agenda for which was: “Executive Session for the purpose of discussing pending litigation.”

As one might expect, all the Board members attended the special meeting to discuss the pending complaint.  Mr. Superintendent sought to allay the concerns of Nellie and the newer Board members, explaining that getting sued goes with the territory of Board service. But Nellie told the Board and Mr. Superintendent that she was really nervous.  Since she had warned the Board about such claims, she explained, her situation was different from the other Board members, and therefore she would be hiring her own lawyer to defend her.

Is that a good idea?

*         *         *

Nellie certainly does not need her own lawyer.  Connecticut law protects board of education members, school employees and even volunteers in certain situations.  But before reviewing that protection, let’s look at the question of liability here.

Liability for negligence normally arises when a person or entity (1) has a duty of care, (2) breaches that duty, (3) causing an injury (4) that is foreseeable.  However, boards of education (and their members and employees) are often protected by governmental immunity.  Such immunity is conferred on governmental entities when their representatives exercise discretion in acting on behalf of the public they serve.  However, governmental actors are not protected from liability for acts that are malicious, when statutes abrogate such immunity, or when the plaintiff is a member of a foreseeable class of victims subject to immediate harm.

This last exception to governmental immunity has busied the courts since 1994, and in 2014 the Connecticut Supreme Court clarified that this exception to governmental immunity applies only when it is apparent to the government official that the dangerous condition was so likely to cause harm that the governmental actor had a clear and unequivocal duty to act immediately to prevent the harm.  Haynes v. Middletown, 314 Conn. 303 (2014).  Given the need to establish causation in the first instance, and the protections of governmental immunity in the second, it is unlikely that a parent could establish liability in such a situation.

Whether this claim is strong or weak, Nellie and the other members of the Nutmeg Board of Education are understandably concerned about getting sued.  However, they should take comfort in the expansive protection afforded to them under Connecticut General Statutes, Section 10-235, known as the indemnification statute.  Section 10-235 provides that school board members, school employees (and even volunteers under the supervision of a certified staff member in an activity that is approved by a board of education) are protected and held harmless against liability arising from claims for actions they take in the course of their responsibilities, except for actions that are wanton, reckless or malicious.  This protection includes reasonable attorneys’ fees, and the standard practice for school districts and their insurers to provide counsel at no cost to the defendants when such claims are made.  Board members give their time on behalf of the public and are (and should be) protected.

The future of the pandemic is, of course, uncertain.  Contrary to Bob’s claim, however, boards of education do have the authority to mandate masks as long as the decision has some reasonable basis.  Deciding whether and when to exercise that authority is a challenge, and school districts should continue to look to public health authorities for guidance.

Finally, this situation raises two issues under the Freedom of Information Act.  First, we note that Nellie sent an email to all of her Board colleagues.  Email is a notorious problem for school boards, and conducting Board business through email discussion violates the FOIA requirement that “meetings” be posted and open to the public.  Nellie’s email, however, was fine because (appropriately) her Board colleagues did not reply and no “discussion” occurred.

By contrast, the posting of the special meeting was problematic.  “Executive session” is not an agenda item, and a public agency will not know whether it will have an executive session until the public agency convenes into executive session by a 2/3ds vote, stating the reason for the executive session.  Moreover, the Freedom of Information Commission and the courts have held that public agencies should include the name of the case being discussed in stating the reason for convening in executive session to discuss pending claims and litigation.