Bob Bombast, veteran member of the Nutmeg Board of Education, sees himself as misunderstood. Sure, he talks over people. Sure, he doesn’t listen. Sure, he is likes to grandstand. But why, he asked himself, have his colleagues on the Board of Education not seen the kind Bob, the considerate Bob, the thoughtful Bob that Bob sees in the mirror every day. Tired of being the outcast, Bob decided to mend fences by inviting his Board colleagues to a cook-out at his humble little cottage on beautiful Lake Hayward, right outside of Nutmeg.
Bob sent an email to each Board member, inviting him or her to join him at Lake Hayward for a barbeque. Several Board members wrote back and accepted his invitation immediately. However, others were more wary. Penny Pincher sent an email to Bob asking him to clarify the purpose of the get-together, and Mr. Chairperson expressed concern to Bob in an email that Mrs. Superintendent was not on his guest list. Bob responded to both immediately, copy to all Board members, stating that he just wanted to get to know his fellow Board members a little better. Eventually each of the Board members accepted Bob’s invitation.
Soon, the big day arrived. Bob was tickled to play host for his fellow Board members, and he wanted desperately to impress them. All of the Board members arrived in casual dress, as Bob had suggested. They were surprised, therefore, to see wait staff in crisp uniforms holding hors-d’oeuvre trays. Mr. Chairperson dug right into a big plate of pastry puffs. “Mmmm,” said Mr. Chairperson chewing gratefully. “This is delicious. What is it?”
“Quail puffs,” said Bob proudly. “You might want to go easy on them. They are quite a delicacy. In fact, today you will enjoy one gourmet treat after the other, from appetizers to dessert.” But before Bob could expound further, Bob and the other Board members went silent. Nancy Newshound, ace reporter from the Nutmeg Bugle, pulled up and got out or her car.
“What on earth are you doing,” demanded Bob. “You weren’t invited!”
“Nice to see you too, Bob,” responded Nancy. “Although you forgot to post your meeting, a little birdy told me about it. So what’s the agenda, Bob?”
“There is no agenda, Nancy. This is a private party for Board members. Please leave immediately.” The other Board members were uncomfortable, but Bob was adamant that Nancy must leave, and he even threatened to call the police. Nancy left, but not quietly. On the way out, she gave Bob and the other Board members an earful about their “egregious violation of the Freedom of Information Act.”
The confrontation with Nancy Newshound cast a temporary pall over the festivities, and several Board members commiserated with Bob about how difficult Nancy makes it for them to do their jobs as Board members. However, with the excellent food and expensive wine, the mood brightened, and pretty soon the Board members forgot their troubles in a loud and occasionally ribald game of Charades.
The warm feelings did not last long. After the party, Bob put in for $1,580 in reimbursement for the catering, and Nancy filed her complaint with the FOIC.
Other than a personality transplant, do you have any advice for Bob?
* * *
Bob needs to figure out a better way to repair his relationship with his fellow Board members. His actions raise two legal issues and a policy issue.
First, the question is whether the soiree at Lake Hayward was a public meeting. If it was, the Board violated the Freedom of Information Act by not posting the meeting and by excluding the public, including Nancy Newshound. If it was not, Nancy was an uninvited guest properly asked to leave.
The Freedom of Information Act (FOIA) gives us guidance here, and on balance, it appears that the gathering was an improper meeting of the Board of Education. The FOIA defines “meeting” as including “any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.” Significantly, members of a public agency may conduct a “meeting” even if it is agreed ahead of time that no action will be taken – the definition refers to a gathering to discuss or act upon matters within the agency’s jurisdiction. Therefore, “informal” meetings, such as workshops or the like are still meetings under the FOIA. Accordingly, they must be posted and open to the public.
The FOIA definition of “meeting” excludes certain gatherings, including “any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business.” Bob would likely claim that the cook-out was in fact a social meeting not planned or intended for discussing Board matters. However, given the remedial purposes of the FOIA, it is strictly construed, and any discussion of Board business may change the meeting from social to business. Here, the commiseration over Nancy Newshound’s impact on the Board may be enough to lose the “social meeting” exemption from “meeting” requirements.
Second, Bob’s email invitations raise two other issues. By “discussing” his party by email, Bob raises the issue of whether such discussion became a “meeting,” because the definition of “meeting” above includes communication to or by a quorum by means of electronic equipment, here email, that constitutes a discussion. Conversely, if such emails are truly social in nature, they are not public records because a public record is “recorded data or information relating to the conduct of the public's business.” Interestingly, board member communications to other board members on personal topics unrelated to Board business are not public records.
Finally, Bob’s efforts to impress his colleagues present a policy issue. In Connecticut, board of education members may not be compensated. However, they may be reimbursed for personal expenditures made in their service to the school district. Bob’s reimbursement request is, of course, ridiculous. Moreover, given Bob’s claim that the event was social in nature, it is not clear that any reimbursement would be appropriate. However, Bob’s excessive hospitality reminds us that boards of education should have policies in place concerning reimbursement and related approvals. When such guidance is in place, board members will know in advance what expenditures will be reimbursed by the school district.
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.