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Public Comment is included on the agenda of each regular meeting of the Nutmeg Board of Education.  Residents of Nutmeg speak at length on a variety of topics, ranging from youth athletics to the budget.  Last month, however, it got ugly when a parent came up to the microphone to speak.  “Good evening.  My name is Pamela Parent, and I live at 77 Sunset Strip, Nutmeg.  I appreciate the opportunity to address the Board because I have a bone to pick with my son’s fifth grade teacher, Tom Teacher.”

“Hold it right there,” Ms. Chairperson interrupted.  “We have a rule here in Nutmeg.  We do not allow people to say mean things about our staff members.  From your opening remarks, it sure seems like you are going to violate that rule.

“I just want to tell the Board members that Tom Teacher is the worst teacher I have ever had the misfortune of knowing.  He is mean to kids and is never prepared for class.”

“That’s it!” growled Ms. Chairperson.  “You are out of order!  Please sit down!”

“Wait a minute!” interjected Nellie, a new Board member.  “If parents have a concern about one of our teachers, we should hear them out.  I have heard the stories about Tom Teachers myself, and I have wondered why he hasn’t been fired yet . . . .

Ms. Chairperson had enough.  “Nellie, you are out of order!  We need to move on.”

“Hold on!” Nellie pushed back.  “How are we going to do our jobs if we just sit here like bumps on a log?  I hear Tom Teacher is terrible.  Shouldn’t we hear Ms. Parent out?”

“If you want to talk to speakers during public comment on other topics, that’s fine,” responded Ms. Chairperson.  “But we can’t have people badmouthing our staff members.  “We have a strict rule that negative comments about teachers and others are not allowed.  Nellie then thanked Ms. Chairperson for the explanation, and she and the Board moved on.  

Tom Teacher, on the other hand, did not move on.  Through Bill Alot his attorney, Tom claimed that Pamela Parent and Nellie Newbie had both defamed him, and he made a demand on each of them for a payment of $10,000 to “fix” things.  Unless they paid up, Bill threatened, Tom would sue them both for six figures.

Nellie was aghast when she learned that Tom was threatening to sue her and Pamela Parent, and she wondered where she would ever get the money to hire a lawyer.  She called Ms. Chairperson to ask for help.  However, Ms. Chairperson told her that, while she was sympathetic to Nellie’s plight, Nellie was “on her own” because she should have read the Board’s bylaw prohibiting negative comments about staff members and kept her mouth shut.  The whole point of the bylaw, she explained to Nellie, is to avoid lawsuits just like the one Tom is now threatening.

Is Nellie really on her own, and how strong is Tom’s claim that Nellie and Pamela Parent defamed him?

*          *          *

Nellie is certainly not “on her own,” because board of education members (and school employees) are protected from claims made against them, as described below.  Moreover, the situation in Nutmeg raises other legal and practical problems.

As to a potential defamation claim, Nellie is protected by the indemnification statute, Conn. Gen. Stat. § 10-235.  When board members act within the scope of their responsibilities, right or wrong, the board of education must indemnify and hold them harmless against claims, provided that their actions are not “wanton, reckless or malicious.”  This protection extends to reasonable attorneys’ fees, and thus board members who are sued for their actions taken in good faith as board members will not incur personal expense.

The rule in Nutmeg against negative comments about district employees is a problem under the First Amendment.  Public comment at board of education meetings is not required by law, but all (or almost all) school boards in Connecticut provide such an opportunity for the public to address the board.  That courtesy, however, triggers constitutional protections, because giving the public an opportunity to comment creates a forum for speech.  Once the government creates a forum for speech, the First Amendment applies, and officials cannot engage in what the courts describe as “viewpoint discrimination,” i.e., favoring or prohibiting speech based on the viewpoint of the speaker.  

If a board of education permits people to thank teachers or otherwise say nice things about district staff, it cannot shut down people who wish to criticize those staff members.  As a practical matter, the chairperson can attempt to redirect the speaker by interrupting him or her with the observation that the speaker should direct any concerns to the superintendent, who is responsible for personnel matters.  However, an absolute prohibition against critical comments about staff members is not permissible if the board allows positive comments about staff members.

In considering this matter, board members should be aware of the concept of a “limited forum,” i.e., an opportunity for public speech that is limited to a particular topic.  A board of education can hold a hearing on the budget, for example, and speech can be limited at that hearing to budgetary matters.  Indeed, public comment more generally would be a forum limited to comment on school district matters, not other topics like the national debt.  However, even in a limited forum, the prohibition against viewpoint discrimination applies, and speakers on all sides of an issue must be allowed to express their view on that topic.

During Public Comment, board members should listen and not respond to comments made by members of the public.  As a legal matter, board members could violate the Freedom of Information Act by launching into a discussion of a topic brought up in Public Comment, because that topic would not be on the agenda for the meeting.  As a practical matter, responding to such comments in the moment is fraught with danger because board members would be commenting after hearing only one side of the story.  It is best simply to listen, and to let the public know (with a note on the agenda or otherwise) that they have a specified amount of time (such as three minutes) and that the board members will not be responding.

Finally, a brief comment about defamation claims may be helpful.  Tom Teacher will be disappointed to learn that the Connecticut Supreme Court decided in 1992 that teachers are public officials for defamation purposes because of the importance of unfettered debate about education and teacher performance.  Kelly v. Bonney, 221 Conn. 549 (1992).  As a result, to recover on a defamation claim, a teacher (or other public official, such as a board of education member) must establish that the defendant (1) made an assertion of fact, (2) that is untrue, (3) that harms one’s reputation, and, when one is a public official, (4) that was made with malice or reckless disregard for the truth.  Given this standard, it is generally very difficult for teachers to recover on a defamation claim.  In this case, however, Tom has no chance at all. The statements made about Tom were not assertions of fact, but rather expressions of opinion as to Tom’s performance.  Such expressions cannot be the basis for a defamation claim.

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Photo of Thomas B. Mooney Thomas B. Mooney

Tom is chair emeritus of the School Law Practice Group and is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and…

Tom is chair emeritus of the School Law Practice Group and is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and all other legal proceedings involving boards of education. Tom is the author of A Practical Guide to Connecticut School Law (9th Edition, 2018), a comprehensive treatise on Connecticut school law, and two columns, “See You in Court!,” which appears in the CABE Journal, and “Legal Mailbag,” which appears in the CAS Bulletin.