The Nutmeg Board of Education has a new look for the fall. To be sure, Bob Bombast is still on the Board, along with other veteran Board members Penny Pincher and Red Cent. However, Mrs. Chairperson and three other Board members chose not to run, and there are four new members on the Board. Bob Bombast lobbied for weeks to be elected Board Chairperson, and as soon as Mr. Superintendent, as moderator, opened the organizational meeting, he nominated himself. However, the four new members had seen Bob in action, and they quickly nominated and elected one of their number, Nellie Naïve, to be the new Chairperson.
Nellie promptly thanked the Board members for their confidence in her, and she described her new "vision" for the Board. Without overtly insulting her predecessor (at least not too much), Nellie promised that she would run things in a more democratic fashion, starting with the agenda. Any Board member, she promised, would be free to provide items for the agenda.
Soon, Nellie’s new approach was put to the test. As the agenda was being prepared for the next meeting, each of the Board members offered items for discussion, and some offered several. Dutifully, Nellie added each of the proposed items to the agenda, and it was quite a potpourri, ranging from proposed policy reviews to the quality of the food in the high school cafeteria.
Bob Bombast got into the act as well. He proposed that the Board include two standing items on its agenda, "New Business" and "Executive Session," and these items were promptly added to the agenda. When the meeting was finally posted, the agenda was three pages long.
Not everyone was happy with the new approach. Nancy Newshound, ace reporter for the Nutmeg Bugle, took the opportunity during public comment to criticize the new approach. "Don’t get me wrong," Nancy started. "I am not suggesting that you shorten your agenda. Every time you people address an issue, I get another story out of it. But you really have to be more specific in describing the items on your agenda. I am not paid enough to attend all of your meetings, and I need to know when you will be addressing the juicy items. ‘New Business’? Give me a break!"
Still smarting from his unsuccessful campaign, Bob Bombast answered peevishly. "Of course we can have ‘New Business’ on our agenda. Haven’t you ever read Robert’s Rules? Old Business and New Business are appropriate agenda items for any meeting. You should stick to reporting and butt out of our business."
Wanting to make nice with Bob and the other Board members, Nellie told Nancy that she was not going to tell Board members how to frame their agenda items. Nancy was not placated, however, and she threatened the Board with an FOI complaint.
Should the Board be worried?
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Nellie is off to a bad start, and, yes, the Board should be worried. Any new (or experienced) member of a board of education should take some time to learn about the Freedom of Information Act (FOIA). Meetings of public agencies are highly-regulated in Connecticut, but doing a little homework can help Board members avoid FOI problems. Additional information about the Freedom of Information Act is available online at http://www.shipmangoodwin.com/ftpfiles/Mooney/FOIA_Excerpt.htm.
A fundamental requirement of the FOIA is that public agencies must post an agenda for their regular and special meetings. Regular meetings are those on a list filed with the town clerk (or clerks) of the school district prior to January 31 each year. Special meetings are any and all other meetings. For both types of meetings, the agenda must be filed with the town clerk(s) at least twenty-four hours before the meeting starts. Significantly, by a two-thirds vote members of a public agency can add items to the agenda of a regular meeting. However, public agencies may not add items to the agenda of a special meeting. Indeed, unless an item is on the agenda, Board members should not even talk about it. The FOIA defines a meeting as any assembly of a quorum of a multi-member public agency " to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power."
The FOIA is enforced by the Freedom of Information Commission, and the Commission has repeatedly held that the wording of the agenda must be sufficiently specific so as to apprise the public of the matters to be discussed or acted upon. Bob was wrong to suggest (and Nellie was wrong to agree) that "New Business" should be included as an agenda item, because the public would have no way of knowing what the Board would be discussing or acting upon. Rather, the Board should describe its agenda items with sufficient specificity so that Nancy Newshound and other members of the public know what the Board is up to.
Ironically, while specificity is required, too much specificity can cause problems. For example, a member of the public could read an agenda item, "Discussion of School Closing," and decide to stay home and watch CSI New York. However, that member of the public would have a valid FOIA complaint if the board of education then went ahead and voted on the matter. "School Closing" (or "Discussion and Possible Action upon School Closing") would be a more appropriate agenda item.
Executive session poses special challenges. First, "executive session" is not an agenda item. Rather, discussion of some agenda items is privileged to executive session. A public agency may convene in executive session by a two-thirds vote, "stating the reasons for such executive session." Again, specificity can be an issue. While discussion of personnel matters or of litigation strategy may be appropriate for executive session, the Commission has repeatedly held that "personnel matters" or "litigation" are not sufficiently specific statements of the reason for the executive session. The board must strike an appropriate balance between apprising the public of the matter to be discussed (which would typically be listed on the agenda) and maintaining the confidentiality of the discussion.
Finally, Nellie may have created a monster by letting all Board members add agenda items. There should be a process for setting the agenda, and some control is appropriate. If proposals to add items to the agenda ever becomes a problem, boards can adopt a requirement that at least three board members request the addition of any item not otherwise included on the agenda.