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Since her election to the Nutmeg Board of Education last November, Nellie Newbie has taken her responsibilities as a Board member seriously, too much so.  After being reined in shortly after her election, Nellie is at it again.  Now, Nellie has decided to visit each of the schools in Nutmeg on her own, and the word “visit” hardly describes what she is doing.  Last week, Nellie showed up unannounced at Acorn Elementary School.  She first asked the principal for a tour, and then she demanded to sit in on some classes.  The principal did not know what to do or say, and he just acquiesced to Nellie’s request, and she sat in on classes taught by four teachers.  To top it off, Nellie then gave the principal the notes of her observations, in which she described the strengths and weaknesses of each teacher.

When Mr. Superintendent heard about Nellie’s visit, he called Ms. Board Chair to ask what he could do about Nellie’s actions.  They both agreed that it was not appropriate for Nellie to observe classes in that manner, and Ms. Board Chair followed up with a telephone call to tell Nellie that her visits were against protocol.  Nellie was unmoved.

“You’re not my mother,” Nellie curtly responded.  “There is no law that says I cannot visit the schools, and I will continue to visit them.”

True to her word, Nellie showed up unannounced at Median Middle School the next day, and again she asked for a tour and then to observe some classes.  The principal didn’t want to pick a fight with a Board member, particularly one with so much energy, and she gave Nellie a tour and let her observe classes taught by three of the best teachers in the school.  Again, Nellie took careful notes and shared her evaluation of the lessons she observed with the principal.

Ms. Board Chair was incensed when she heard about Nellie’s latest school “visit.”  But when she called Nellie to chastise her, Nellie was unrepentant, which only further antagonized Ms. Board Chair.  After conferring with Mr. Superintendent, Ms. Board Chair included a new item on the agenda for the Board meeting this week: “Censure of Nellie Newbie.”

Meanwhile, Bruno, President of Nutmeg Union of Teachers, had heard about Nellie’s impromptu evaluations of teachers, and he called Mr. Superintendent to complain.  Mr. Superintendent had thrown up his hands over Nellie’s actions, and he told Bruno that Nellie had gone rogue and that there was nothing he could do.  But Bruno was more than ready to do something, and on behalf of NUTS, he filed an unfair labor practice charge, claiming that Nellie’s classroom observations and related evaluations of teachers constituted a unilateral change in working conditions, an unfair labor practice.  

Mr. Superintendent sent Nellie a copy of the unfair labor practice charge, and he asked her to cease and desist.  Nellie responded, however, that the schools are public buildings and that she, as a resident and Board of Education member, has every right to visit the schools and to offer her opinion on what she sees.

The meeting of the Nutmeg Board of Education is scheduled for tomorrow.  Are there any special procedures that will apply when the Board members consider the censure of Nellie?  

Is there any merit to the claim by NUTS that Nellie’s actions are an unfair labor practice?

*          *          *

We can start with the claim by NUTS that Nellie’s classroom observations are a change in working conditions.  At the outset, we note that the development of a school district teacher evaluation and support plan is excluded from the scope of mandatory negotiations by virtue of Conn. Gen. Stat. § 10-153d(b).  Indeed, this year school boards are required to adopt new teacher evaluation and support plans by July 1 pursuant to the changes made last year in the related laws.  To start, boards must consider whether to approve the new plan as proposed by the local PDEC (Professional Development and Evaluation Committee) established pursuant to Conn. Gen. Stat. § 10-220a(b).  If the board does not approve the plan proposed by PDEC, it and the PDEC must decide whether to approve the model teacher evaluation plan recently promulgated by the Connecticut State Department of Education.  If either the board of education or the PDEC do not approve the model plan in such case, however, the board is free to adopt a plan on its own provided that the plan conforms to the guidelines for teacher evaluation established by the State Board of Education.  Conn. Gen. Stat. § 10-151b(b)(2).

Here, Nellie’s sitting in classes and purporting to evaluate teachers is inappropriate for a number of reasons. She is not qualified to evaluate teachers, and as contrasted with the confidential “records of teacher performance and evaluation” created pursuant to a teacher evaluation and support plan, Nellie is creating non-exempt public records in her reports to the principal.  Moreover, NUTS has a valid claim here because it would be a unilateral change in working conditions for teachers to observed and evaluated by board members.

Not surprisingly, there are no reported cases involving board member evaluation of teachers.  But the Connecticut State Board of Labor Relations (CSBLR) has ruled on several occasions that surveillance of employees in the workplace (such as installation of surveillance cameras) is a mandatory subject of negotiations, which if done unilaterally without prior negotiations is an unfair labor practice.  Nellie’s actions here are similar.

Mr. Superintendent and district principals must understand the basic principle that Nellie, acting alone, has no greater rights as a Board member than any other member of the public.  Undeniably, it is hard to challenge a board member, but the principals here erred when they permitted Nellie to observe classes without Board or Superintendent approval.  

Finally, we note that the Nutmeg Board of Education will be considering “Censure of Nellie Newbie” at its meeting this week.  Boards must weigh the pros and cons of such actions because they bring public attention to board dysfunction, and a censure can only express board disapproval of the actions of a board member; removal from office is not an option.  However, sometimes such action is necessary, and this may be one such situation.

In considering this matter, the Board must be aware that Robert’s Rules distinguishes between two situations.  If board member misconduct occurs at a meeting, the board can take disciplinary action without further inquiry because the board members witnessed what happened.  

When alleged misconduct occurs outside of a meeting, however, different procedures are required, starting with a determination whether the alleged misconduct occurred.  In such cases, Robert’s Rules, §§ 61, 63, contemplates that the body (here a board of education) would appoint a committee to investigate the alleged misconduct and report back to the body on the facts it found, with a referral for disciplinary action if it determines that the alleged misconduct occurred.  Here, Nellie may admit to her conduct, making further investigation unnecessary.  If not, a committee will have to investigate and report back.  In either event, after giving Nellie an opportunity to respond to the charges, the Board may consider whether to vote to censure Nellie for her conduct.

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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.