SEE YOU IN COURT!

Nellie Newby was elected to the Nutmeg Board of Education last November, and she spent the better part of the year rarely speaking at Board meetings and simply observing the operations of the Nutmeg Public Schools.  However, things changed when Polly Parent addressed the Board at public comment last month to complain about Tom Teacher.  Polly’s son had just completed sixth grade at Median Middle School, and Polly told the Board members that her son was poorly prepared for seventh grade because Tom Teacher, his language arts teacher, did not grade and return homework to students all year.  

Polly’s comments upset and intrigued Nellie, who leaned forward and asked Pamela to elaborate.  “Did you complain?  How could that go on all year?

“Oh, I did!  I met with Tom Teacher, and he told me that he was busy and he would get to it, but he never did,” Polly responded.  “After waiting a month, I complained to the Principal, and he told me that he would take care of it.  Again, he never did.  I even wrote an email to Mr. Superintendent with my concerns, but he never responded.”

Nellie turned to Mr. Superintendent and asked him whether he had ignored Polly’s letter, but he demurred, stating that he received many emails and could not remember.  Nellie then turned back to thank Pamela for her courage and promised to follow up on her concerns.

The Board meeting went on, but Nellie remained focused on Polly’s complaint.  When she got home, she sent a group text to the entire Board imploring them to take action.  Veteran Board member Bob Bombast texted back with the following: “Board members shouldn’t get involved in administrative matters!  Supervising teachers is the Superintendent’s job, not ours.  STAY IN YOUR LANE!”

Nellie was undeterred, and she next set her sights on Mr. Superintendent.  Nellie texted Mr. Superintendent and demanded to know whether he had ignored Polly’s email.  Mr. Superintendent texted back that he had responded to Polly, but he hadn’t been able to talk about Polly and her son during public comment because of confidentiality rules.  

Now Nellie was really frustrated and texted back, “If you responded, tell me what you said.”  Mr. Superintendent responded to Nellie by text saying that he was not comfortable talking about personnel matters by text and that she should give him a call.  But Polly persisted and texted back that she wanted action and that Tom Teacher should be fired for his dereliction.

As it turns out, Tom Teacher had been on a performance improvement plan during the past year, and he had not been successful.  Mr. Superintendent had reached out to the Nutmeg Union of Teachers (NUTS) for assistance in negotiating a separation agreement with Tom.  Bruno, the NUTS representative, presented a proposed agreement from Mr. Superintendent to Tom, but Tom wasn’t interested.  Accordingly, Mr. Superintendent initiated proceedings to terminate Tom’s employment, coincidentally, right after receiving Nellie’s text.

On Tom’s behalf, Bruno asked for a hearing in accordance with the statute, and he also made a request of Mr. Superintendent under the Freedom of Information Act for all communications with any person, electronic or otherwise, that Mr. Superintendent had about Tom Teacher during the last year.

Will Mr. Superintendent be required to produce Nellie’s texts, and will those texts be a problem?

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Given the ubiquity of cell phones and the increase in texting, it may be helpful to note that text messages, same as emails, are public records under the Freedom of Information Act.  Conn. Gen. Stat. § 1-200(5) provides:

(5) “Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, . . . whether such data or information be handwritten, typed, tape-recorded, videotaped, printed, photostated, photographed or recorded by any other method.

In short, if recorded information relates to the conduct of a public agency, that record is a public record that is subject to public disclosure unless the information is exempt from public disclosure by statute.  Significantly, the medium by which information is recorded is irrelevant, and if an email or text message to or from a board member relates to the public’s business, it is subject to the FOIA even when recorded on personal cell phones or computers. 

At the same time, it may also be helpful to note that all public records are subject to the Public Records Retention Schedules of the Public Records Administrator.  Significantly, the applicable retention requirement does not depend upon the medium (e.g., correspondence, email, or text), but rather on the nature of the record.  If a record is not essential to the fulfillment of statutory obligations or to the documentation of district functions, it may be considered a “transitory” record that may be deleted at will.  Most text messages will fall into this category and need not be retained.

Here, Nellie’s text messages would be transitory because they are akin to telephone conversations.  However, if Nellie’s text messages are available (because one or more of the recipients have not deleted them), they will cause trouble.

First, Nellie’s texts to the Board members and Bob’s response violated the FOIA because these messages were the equivalent of a “discussion” of Board business among a quorum, which should only occur at a posted meeting.

Second, Nellie’s text to Mr. Superintendent asking that Tom Teacher should be fired may also cause trouble.  Mr. Superintendent was already addressing the concerns about Tom Teacher, and a record of a Board member demanding Tom’s termination could be used to argue that the termination decision was based on political pressure, not the merits.

In that regard, we note that the General Assembly made a significant change to the Teacher Tenure Act this year.  Since its inception, the Act gave boards of education the final say on the termination of the contract of a tenured teacher (as long as the underlying facts as found by a hearing officer provided support for that decision).  However, Section 8 of Public Act 26-12 changed that, stripping boards of education of that authority and providing instead that termination proceedings for tenured teachers will now simply be arbitrations.

This change does have one curious impact.  Historically, superintendents have not been able to share information about potential teacher termination hearings with board members because they may serve as impartial judges.  Sharing such information is no longer a problem, however, now that board members will not play any role in such termination hearings.

Finally, Nellie’s engaging with Polly Parent during Public Comment was a mistake.  Public comment is provided for boards of education to hear from others.  In so doing, however, board members are hearing only one side of the story, which may or may not be accurate.  Should public comment raise concerns, board members can certainly follow up later.  However, engaging with such comments in the moment is a risky business.