Tom Teacher is well-known in Nutmeg, but not for the right reasons. He is a controversial figure, regularly speaking to both the Nutmeg Town Council and the Nutmeg Board of Education during public comment in hostile tones about what he perceives to be the failings of elected officials. Almost everyone in Nutmeg has an opinion about Tom; some residents loved his feisty approach, and others think him an embarrassment to himself and to the Nutmeg Board of Education, which has employed him for seventeen years.
It was therefore quite a scandal when Tom Teacher was arrested for DUI. The Nutmeg Bugle promptly obtained and published a copy of the arrest report, detailing the events of the incident, which included property damage and a blood alcohol level over twice the legal limit. Mr. Superintendent promptly placed Tom on administrative leave, with pay and without prejudice, so that he could investigate the incident and decide what to do with Tom.
Mr. Superintendent sent the members of the Nutmeg Board of Education a “confidential” email informing them of the arrest and of his action placing Tom on leave. Veteran Board member Bob Bombast then called Mr. Superintendent to get the inside scoop. Mr. Superintendent told Bob that he really couldn’t talk about the situation, but he did confide to Bob that things looked pretty bad for Tom.
Bob was less guarded in his approach, and he spoke freely about Tom’s arrest with any number of people. Bob heard from various parents and others that it is finally time to cut Tom loose, and Bob often responded coyly that he couldn’t say he disagreed.
Others saw it differently, and one Nutmeg resident even started a Change.org petition supporting Tom and describing him as a victim of selective prosecution based on his outspoken comments to elected officials. As time wore on, the community grew more divided over what should be done with Tom Teacher.
Given the controversy, there was great surprise in Nutmeg when Mr. Superintendent issued a short public statement last week announcing that he had accepted Tom Teacher’s resignation, which Tom had submitted to “explore other opportunities.” Nutmeg Bugle reporter Nancy Newshound promptly called Mr. Superintendent for more information about this surprising development, but Mr. Superintendent declined comment, stating that it was a “personnel matter.” Nancy then made an FOIA request for “all records related to Tom Teacher’s resignation,” which Mr. Superintendent “took under advisement.”
Bob Bombast and the other members of the Nutmeg were put out that Mr. Superintendent kept them in the dark until they read the public statement along with everyone else. To make amends, Mr. Superintendent sent them another “confidential email” with a copy of the separation agreement he had negotiated with Tom Teacher, providing that Tom will stay on the payroll through the end of this school year. To maintain the confidentiality of the communication, Mr. Superintendent included Ms. Board Attorney on the email. But Bob Bombast was not mollified, and he publicly stated that Mr. Superintendent should have obtained Board approval for the separation agreement before signing it.
Did Mr. Superintendent do anything wrong here?
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We start with the threshold question – did Mr. Superintendent have the authority to sign a separation agreement with Tom Teacher without Board approval? As a legal matter, Mr. Superintendent clearly has that authority. Under Conn. Gen. Stat. § 10-157, the superintendent serves as the “chief executive officer of the board,” and, as such, superintendents are authorized to act on behalf of their boards of education without a board of education vote authorizing such actions, including actions resolving personnel matters.
As a practical matter, whether and under what circumstances superintendents may take such action unilaterally will depend on the specifics of the situation and, most important, the expectations of the board members. However, in establishing such expectations with the superintendent, board members must keep in mind that they may be called upon to conduct a hearing on a superintendent’s recommendation that a teacher’s employment be terminated. In such cases, board members must act as impartial judges as a matter of due process. Prior substantive communications between board members and the superintendent outside of such a hearing may render board members incapable of serving as impartial judges. Accordingly, superintendents should not share information about a potential teacher termination hearing with board members until the hearing, except in rare cases when the superintendent must consult with the board before finalizing a separation agreement. In such cases, the superintendent and the teacher should agree in writing in advance that any such communication will not give rise to a due process claim if the board does not approve the proposed separation agreement and therefore must hear the case. In any event, if the matter is resolved through negotiation, the board and superintendent can discuss the facts afterwards because board members will not be acting as hearing officers at that point.
When Bob Bombast called looking for more information about Tom’s arrest, Mr. Superintendent tried to toe this line, but he may have crossed it when he told Bob that it didn’t look good for Tom. On the other hand, Bob’s discussions with parents and others about Tom were totally inconsistent with his duty to remain impartial about Tom’s continued employment with the Board. If Mr. Superintendent and Tom had not worked out a separation agreement and the matter had gone to a hearing, Bob’s participation in such a hearing would have given Tom a claim that Bob was biased against him, violating his due process rights. When controversial issues involving a teacher arise, board members should not discuss the matter with others or among themselves until the matter is resolved, one way or the other.
This situation also raises issues under the Freedom of Information Act. First, we note that Mr. Superintendent marked as “confidential” his first email to the Board about the situation. Though marked “confidential,” that email is a public record subject to disclosure upon request because there is no applicable exemption from disclosure.
Mr. Superintendent also sent the Board members a copy of the separation agreement with Tom Teacher, and he included Ms. Board Attorney on the transmittal in an effort to maintain it as confidential. However, attorney-client communications to and from public officials are confidential only when they either request legal advice or respond to such requests. Here, Mr. Superintendent was simply sharing information, not requesting legal advice, and his communication with Board members, therefore, was subject to disclosure.
In any event, separation agreements are public records subject to disclosure upon request. We note that Mr. Superintendent took Nancy’s request for a copy of the separation agreement “under advisement.” Mr. Superintendent’s responsibility under the FOIA, however, is to provide non-exempt records “promptly” upon request. Sitting on her request without justification when the separation agreement is readily available would be a violation of the FOIA.