Freedom of Information

The Nutmeg Board of Education is in the thick of its budget deliberations, and the members are having trouble establishing priorities. Board members Red Cent
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Mr. Chairperson has had his hands full with two new members of the Nutmeg Board of Education. Mal Content and Chrissie Critical were elected to the Board just last November, but they quickly started antagonizing Mr. Chairperson and the other Board members. Nothing, it seemed, was right in their view. Mal and Chrissie complained at the Board meetings about the “do-nothing” Board, and they repeatedly complained by email to all the other Board members. Some Board members tried to respond to their concerns by return email, but the disaffected two were unmoved and continued to find fault with the Board.

Mal and Chrissie were frustrated, they claimed, because Mr. Chairperson was thwarting their reform efforts. They had both repeatedly asked that an item be added to the Board meeting agenda – appointment of a special counsel to investigate Board member collusion with Seymour Dollars, venerable Chair of the Nutmeg Board of Finance. They claimed that Seymour was pulling the strings on Board decision-making, and they wanted the other Board members to be questioned under oath as to what Seymour Dollars has said to them and when he said it. They even suggested that Mr. Chairperson take an straw poll of the Board members by email, claiming that he would find that a majority of the Board members agree with their request. However, Mr. Chairperson stonewalled them, telling them that such a witch hunt would not be allowed on his watch.

Finally, the other Board members had had it with the disaffected two, and speaking for the others, veteran Board member Bob Bombast proposed at a special meeting to add an item to the agenda – “Executive session for the purpose of evaluation of the performance of two difficult Board members.” Before the motion could even be seconded, however, Mal spoke up, stating the any discussion as to his efforts to straighten out the “dysfunctional” Board of Education should be held in open session. Chrissie weighed in as well, claiming that she would not be a party to any attempt secretly to defame her and interfere with her efforts to clean house.

“Never mind,” Bob responded. “If we can’t have a candid discussion about these two trouble-makers in executive session, we’ll just have a more general discussion in executive session about Board operation.” With that, the Board voted to convene into executive session. Not surprisingly, however, the discussion of “Board operation” soon devolved to an angry exchange between the other Board members and Mal and Chrissie about how they as Board members were misbehaving.

Mal and Chrissie were unchastened, and they decided to pursue their crusade through FOI requests. They asked for any and all email communications between and among any member of the Board and/or with Seymour Dollars concerning budget matters. Pushing hard, they demanded that all such emails be produced within four business days, “in accordance with the Freedom of Information Act,” they said.

Mr. Superintendent responded within four business days, informing Mal and Chrissie that the district is working on their request, but it will take some weeks to find, review and produce all of the emails.

Can Mal and Chrissie file an FOIA complaint, and will they win?
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Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

For the last five years as the principal of an elementary school, I have done my very best to stay under the radar of the board of education. I appreciate the public service of the board members and all, but they are really a bunch of nosy parkers who should get a life.

Why am I telling you this, you ask. Here is the situation…The first day of school a parent came to see me with a concern that his daughter was being bullied. I was, of course, appropriately sympathetic, and I tried to ask the father what we could do to help. But he kept getting louder and angrier, and then he started making vulgar verbal attacks on my staff and on me personally. He was impervious to my efforts to de-escalate, and finally I had to tell him that our meeting was over. Even then, he kept on shouting until I threatened to call the police. He finally agreed to leave, but not before he warned me that I would be hearing more from him.

Hear, I did. The father continued the attacks, except this time on social media. To read his posts, I am a heartless bureaucrat who chased him out of my office and hates students. Unfortunately, some of the Board members took notice of these attacks, and now I find myself the subject of an executive session discussion. On the whole, I’d rather be in Philadelphia, but I am thinking that it would probably be best for me to attend the executive session. Can I do that?

Thank you,
I Am Innocent
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After serving as Chairperson of the Nutmeg Board of Education for six long years, Mr. Chairman announced unexpectedly at the last meeting in February that his company had transferred him to Illinois. At what would be his last meeting, Mr. Chairperson told his colleagues that they were the best board members in Connecticut, all appearances to the contrary notwithstanding. For their part, the other Board members perfunctorily thanked Mr. Chairperson for his service, but then immediately started discussing who should take over as Chair. As it turned out, only Bob Bombast and his nemesis on the Board, Mal Content, were interested. With two vying candidates, however, the Board didn’t know what to do.

Mr. Superintendent tries to stay clear of intra-Board issues, but he couldn’t resist offering a suggestion that night. “The Board should convene into executive session and interview both Mal and Bob, and then you can vote to elect a new Chairperson.” The Board thanked Mr. Superintendent, and the Board did just that, after adding “Discussion of candidates for Board Chair” to the agenda by a two-thirds vote. Bob and Mal then made their pitches to their fellow Board members in the executive session, and the Board reconvened in open session to vote by secret ballot.

Before the voting began, Mr. Chairperson announced that he would not vote, and the remaining Board members split evenly between Bob and Mal. It was 4-4 on the first ballot, and it was 4-4 on the second ballot. Board members looked around curiously, trying to figure out who was voting for whom, but in voting two more times, the Board members deadlocked again 4-4 both times.

Mr. Chairperson was concerned that the Board should figure something out before he left for Illinois, so he proposed that Penny Pincher, currently the Board secretary, be named Chairperson Pro Tempore at the next meeting, to serve until the Board breaks the tie and elects a new Chair. After teasing Mr. Chairperson about his fancy words, the other Board members voted unanimously to elect Penny as Chairperson Pro Tempore, commencing with the next meeting.

Penny convened the next Board meeting, and she did a nice job. On the agenda that evening was the vote to fill the vacancy on the Board, and the Board promptly elected Nick Newbie, who was suggested by the Town Committee of Mr. Chairperson’s party. The Board also held another secret ballot election for a new Chair, but the Board deadlocked again, given that Nick chose to abstain. Bob Bombast even joked about how stubborn they all must be. The meeting ended with agreement that Penny would continue on as Chairperson Pro Tempore, i.e., on a temporary basis.

Two days before the April meeting, the Board members were shocked to read in the Nutmeg Bugle that Mayor Megillah, citing the need for fresh blood, had announced that he has appointed Nick Newbie to serve as Chair. You could cut the tension with a knife as the Board members gathered before the next meeting. Penny sat grimly at the head of the Board table, holding the gavel tightly in her hand. Nick approached her sheepishly, and he asked her to turn over the gavel to him.

Should she?

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Back view of a businesswoman asking a question on seminar.There’s still time to register for this complimentary seminar offered to board of education members.

School Law attorneys Richard A. Mills, Rebecca Rudnick Santiago
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This workshop will provide board of education members with best practices and guidance regarding effective board operation with respect to internal governance, administration, school staff,
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The Connecticut Freedom of Information Commission (the “Commission”) recently issued a number of decisions that reaffirmed principles of the Freedom of Information Act (FOIA) which regularly confront Boards of Education.

In Baer v. Thompson Board of Education, FIC 2013-781, the Commission addressed the question of how many days an individual has to file a FOIA complaint. Specifically, the complainant contended that he had thirty business days, not thirty calendar days, in which to file a complaint pursuant to CGS §1-206(b)(1). The Commission rejected the complainant’s argument, noting that had the legislature intended for business days to be utilized in calculating the appeal period it would have expressly done so, and held that the statute requires that a complaint be filed within thirty calendar days of the alleged FOIA violation.

Another Commission decision addressed the commonly made claim that public agencies are required to provide requested documents within “four business days.” In Smith v. Greater Hartford Transit District, FIC 2014-184, the Commission addressed a complaint that alleged that a FOIA violation occurred when the public agency delivered requested documents to the complainant one week after his request. The Commission held that it was “well settled” that the FOIA does not require “immediate access to records upon demand,” but only requires that records be provided “promptly.”

In examining the specific facts of the complaint, the Commission found that there was no “undue delay” in responding to the record request and, as a result, the requested records were provided “promptly” as required by law. Additionally, the Commission expressly stated that the four business day requirement “simply provides a requester with the ability to file an appeal in the event an agency fails to respond to the request” within this time period. The law presumes that such a non-response is deemed a denial for purposes of triggering the right to file an appeal “without having to wait definitely for a response.”
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