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SEE YOU IN COURT! - December 2009

December 15, 2009

Authors: Thomas B. Mooney

Mrs. Superintendent was having a tough year.  First, there was the power failure at Median Middle School, and school was cancelled for a day.  Then, the entire district was gripped with a swine flu epidemic, and schools were closed for three days.  Now, the weather report was grim.  Though early in the season, a Nor’easter was bearing down on Nutmeg, and the Weather Channel was predicting two days of heavy snow, with accumulation of up to two feet.


Mrs. Superintendent knew that she had a tough decision to make.  She wanted to have school if at all possible, but she sure didn’t want to be blamed if she made the wrong call.  So at 5 a.m. she started calling the members of the Nutmeg Board of Education, and by 5:30 a.m. she had awakened each of them.  After talking it over with each of them, she made her decision.  The Governor might be considering closing the state, but the Nutmeg Public Schools were going to be open.


It was the wrong decision.  By the time the students were at their bus stops, the winds were howling and the snow was falling heavily.  With some delays, the buses fought their way through the snow, and the students finally got to school, some after being on the bus for over an hour.  “Now what?” Mrs. Superintendent asked herself.


The snow kept falling and parents started calling by 9 a.m., asking when school would be dismissed.  By 11 a.m., Mrs. Superintendent decided to call it a day, and the buses soon trundled back to take students home.  The phone calls did not stop, however, even after all the students arrived back home, as a number of parents offered Mrs. Superintendent unsolicited critiques of her decision-making.


Mrs. Superintendent was ready to take some heat for her decision, but she was surprised to receive a demand letter the next day from local legal scourge, Bill Alot.  Apparently, his client Sally Student had driven herself to school that day.  However, on the way home, she lost control of the car in the snow and hit a tree.  Though unhurt, Sally totaled her car, and Bill’s demand letter claimed that Mrs. Superintendent was liable for the damage because she “recklessly and maliciously” failed to exercise proper judgment when she did not close school that day.


Chastened, Mrs. Superintendent vowed to err on the side of caution for the rest of the winter, but she remained concerned about whether and how the Nutmeg Public Schools would hold the required 180 school sessions.  However, when she recommended that the Board cancel February vacation, parents and the Nutmeg Union of Teachers vociferously objected, citing plans already made by many families. 


Under pressure from all quarters, Mrs. Superintendent had one last, bright idea.  She filed a request with the Commissioner of Education, seeking waiver of the requirement that Nutmeg hold 180 school sessions.  After all, who could have ever foreseen the troubles this year?  Is a solution to Nutmeg’s problems at hand?


*        *        *

Mrs. Superintendent’s request will not solve her problems.  Conn. Gen. Stat. Section 10-18 requires that each school district hold 180 school sessions each school year (which is defined by statute as the period July 1 through June 30.  Conn. Gen. Stat. Section 10-15 provides in relevant part:

When public school sessions are cancelled for reasons of inclement weather or otherwise, the rescheduled sessions shall ot be held on Saturday or Sunday....The State Board of Education...may authorize the shortening of any school year for a school district, a school or a portion of a school on account of an unavoidable emergency....

From this statute, we see that the authority to waive the 180 day requirement is vested not in the Commissioner, but rather in the State Board of Education.  Moreover, as former Commissioner Sergi noted following a tough snow season in 2001, “The State Board of Education has not waived the 180-day requirement in the recent past and I do not anticipate they will want to consider it this year.”  It is likely that waiver would be possible only in extreme situations when all other measures have failed, and even then make-up sessions in the following year may be required.  As tough as things are in Nutmeg this year, waiver is not likely a way to solve problem of holding the 180 school sessions.


Mrs. Superintendent’s actions raised a number of other legal concerns as well.  Can Sally Student really get Mrs. Superintendent to pay for her car?  Decisions of public officials can lead to liability when (1) there is a duty of care, (2) the decision is unreasonable, (3) the unreasonable decision causes an injury, and (4) that injury is foreseeable.  Here, liability for Sally’s accident is highly unlikely, because it will be difficult or impossible to show how the snow day decision “caused” the accident when Sally was driving, not Mrs. Superintendent.  In any event, Mrs. Superintendent is protected from personal liability (including legal fees) by the indemnity statute.


Mrs. Superintendent sought help on her snow day call by polling the Board members before she made the call.  In so doing, Mrs. Superintendent may have caused a problem under the Freedom of Information Act.  A “meeting” occurs when a quorum of the Board gathers, “whether in person or by means of electronic equipment, to discuss or act upon a matter” within the Board’s jurisdiction.  The question here is whether the poll constituted a “discussion” among the Board members.  The Freedom of Information Commission has wrestled with this issue as regards email communications, and it decided to consider such matters on a case-by-case basis.  The key question is whether Mrs. Superintendent told some Board members what other Board members said.  If Mrs. Superintendent shares information among the Board members in that way, a “discussion” (and FOIA violation) could well be found.


The challenges this year may cause other school boards to revisit the school calendar.  By statute, boards of education have the right to establish the school calendar, and that right includes modifying the calendar as well.  However, two points are important.  First, as to certified staff the school calendar is a permissive subject of negotiation, and it is possible that the teachers contract has a relevant provision that must be taken into account. 


Second, even when a board of education has the unilateral right to change the calendar, the impact of that decision is a mandatory subject of negotiation.  Changes in the calendar perforce require changes in plans, and such changes can be expensive when teachers and others have purchased airline tickets and accommodations in advance.  Some boards of education have already established a practice of how they change the calendar when necessary, and in such cases there is arguably no impact to negotiate.  However, when change is necessary without guidance from such a practice, negotiations over the impact may be required.  Clearly, the impact of changes will be reduced if the change is announced with plenty of lead time.  The best advice, then, is to address concerns with the school calendar sooner than later.

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