See You In Court - May 2025

With the arrival of warm weather and longer days, the Nutmeg Board of Education has been in the “expulsion season” in recent weeks, that special time of the year when in the exuberance of spring some students push past the boundaries of acceptable behavior.  Some members of the Nutmeg Board actually relish the opportunity to sit in on such hearings, because they are able thereby to get a look at the inner workings of the Nutmeg Public Schools.  Veteran Board member Bob Bombast, however, was sick of sitting through lengthy expulsion hearings, and he decided to do something about it.

Bob Bombast started with the current Board policy on student discipline, which describes conduct for which students may be expelled as well as the related procedures for expulsion hearings.  The procedures set forth in the Board policy in Nutmeg reflect statutory requirements, including the need for at least three affirmative votes for an expulsion vote to be effective.  Bob relied on another provision in the expulsion statute, however, to propose that all expulsion hearings will be heard by a hearing officer selected by the Superintendent.  

Given the affection some Board members in Nutmeg have for conducting expulsion hearings, Bob knew that he had some work to do convince his fellow Board members to go along with these changes.  Rather than bring the proposed changes to the Board in a public meeting, Bob sent his edits to the Board policy to the other Board members in an email for their consideration.  In his email, Bob warned his fellow Board members against replying “all” to avoid the Board’s inadvertently conducing an illegal, unposted meeting through email discussion among a quorum.  However, he did invite Board members to call him individually so that they could discuss his suggested edits.

Bob’s email evoked quite a response from the Board members.  Some called Bob to say that they agree that the Board members have better things to do than to sit through expulsion hearings.  However, others claimed that personally sitting on expulsion hearings was an important responsibility that they should fulfill as Board members.  

Through these conversations, Bob concluded that he would not be able to gain Board consensus over email on the changes he was proposing to the student discipline policy, but he was still apprehensive about hashing this issue out at a public Board meeting.  Then, inspiration struck.  Bob labeled his edited version of the student discipline policy as a “DRAFT” so that the Board could discuss his edits to the Board’s student discipline policy in executive session.  At Bob’s request, therefore, one of the agenda items for the May Board meeting was “Discussion of Draft Board Policy (discussion proposed for executive session).” 

When the Board reached that agenda item at the meeting last evening, Nancy Newshound, ace reporter for the Nutmeg Bugle, stood up and shouted “Point of Order!”  When Ms. Chairperson recognized Nancy, she claimed that the Board could not convene into executive session to discuss a Board policy, draft or not.  But Bob was prepared.

“Nancy should read the Freedom of Information Act!” Bob responded.  “Connecticut General Statutes Section 1-200(6) defines executive session as including “discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210,” and Section 1-210(b) includes “Preliminary drafts or notes” in the list of records that may be kept confidential.  

Did Bob’s response appropriately address the concern about executive session?

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Bob’s review of the Freedom of Information Act here was incomplete, and the Board did not have the right to discuss Bob’s edits to its student discipline policy in executive session.  

Bob was correct in two respects.  First, boards of education have the right to convene in executive session for the purpose of discussing the information contained in records that are exempt from disclosure in accordance with Conn. Gen. Stat. § 1-210(b).  Boards of education frequently utilize this provision for executive session for various reasons.  For example, any discussion of information that is contained in confidential student records must be held in executive session, and such is the case in expulsion hearings, when board members receive confidential information about a student’s disciplinary record as well as academic and other student records.  Other times when boards may convene in executive session for this purpose include discussion of confidential attorney-client communications, discussion of responses to requests for proposals, and discussion of “records, reports and statements of strategy or negotiations with respect to collective bargaining.”

Second, Bob was correct in stating that “preliminary drafts or notes” are also exempt from disclosure in accordance with Conn. Gen. Stat. § 1-210(b).  However, there is more to the story.  Preliminary drafts or notes are exempt only if “the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”  That determination can be made if and when the confidentiality of a preliminary draft is in question, and thus this further condition on the confidentiality of preliminary drafts or notes is typically not a problem.             

The fatal flaw in Bob’s argument is a separate provision in the Freedom of Information Act, which Bob apparently overlooked.  Conn. Gen. Stat. § 1-210(e)(1) provides that the exemption from disclosure of preliminary drafts or notes does not apply to:

(1) Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated . . . (Emphasis added)

Given this exception to the preliminary draft exemption, a draft that is discussed by board of education members is not a “preliminary draft” and is not exempt from disclosure.  Accordingly, the Board was not privileged to discuss Bob’s edits of the student discipline policy in executive session as Bob had proposed.

Two other points here are worthy of note.  First, boards of education are authorized by Conn. Gen. Stat. § 10-233d to “establish an impartial hearing board of one or more persons” to conduct expulsion hearings and render final decisions, provided that a board member may not be appointed to serve in that capacity.  Once a board has established an impartial hearing board to conduct a hearing, board members have no further role in such hearings.  However, boards are free to decide whether they will delegate this authority in all such cases or only some of the time.  Moreover, given their oversight role, boards may authorize one or more board members to observe such hearings on a limited basis and report back to the full board to determine whether such delegation to an impartial hearing board should continue. 

Finally, Bob’s proposal that the Superintendent select the hearing officer was inappropriate.  Due process requires an impartial decision-maker.  As the proponent of expulsion, a superintendent is not impartial, but the board or its designee must be.  Accordingly, the board itself should select the impartial hearing officer to hear such cases.