See You in Court – November 2025

The Nutmeg Board of Education has had its share of legal disputes, and last month was no exception.  Local attorney Bill Alot has sued the district on behalf of Sammy Student, who sprained his ankle playing football.  Bill claimed that Coach Rock was negligent in permitting players to play on slippery grass while it was raining.

When veteran Board member Bob Bombast heard about this claim, he demanded that Ms. Chairperson put the matter on the agenda for the next meeting.  He also asked that Ms. Board Attorney attend the meeting to advise the Board on the merits of the claim.

Ms. Chairperson included “Discussion and possible action on pending litigation” on the agenda for the November meeting of the Board, and Ms. Board Attorney attended that meeting as requested.  When the Board reached that item on the agenda, Ms. Chairperson announced that the Board would convene in executive session to discuss this matter.  As the Board members were getting up to retire to the adjoining conference room for the executive session, however, local reporter Nancy Newshound interrupted the proceedings to object.  “I see that Executive Session is not listed on the agenda, and everyone knows that the Board can only discuss matters on the agenda.”  The Board members did their best to ignore Nancy as they left for the executive session except for Bob Bombast, who told Nancy to mind her own business as he walked past her.

Once in executive session, Ms. Chairperson asked Ms. Board Attorney to update the Board on the matter.  Ms. Board Attorney explained that the court will likely dismiss the claim because everyone plays football in the rain.  In response, Board member Mal Content wondered aloud whether football games should nonetheless be delayed or rescheduled when it rains as they do with baseball games.  Ms. Board Attorney explained, however, that Coach Rock would be liable (triggering a Board duty to indemnify Coach Rock for any damages) only if he acted unreasonably, and having the team play football in the rain was not unreasonable. 

Bob thanked Ms. Board Attorney for her analysis and then made a suggestion.  “I think that we should adopt a policy requiring parents to waive liability claims if they want to let their children play football.  Everyone knows that students get hurt all the time playing football.”  Mr. Superintendent expressed reservations about such a policy, but the Board members agreed with Bob that requiring such waivers would be a good thing.  Bob asked Ms. Board Attorney to draft a waiver form for the Board to review, and he asked her to provide a written opinion that Sammy’s claim is without merit so that he can let Coach Rock know that he can continue to have the team play in the rain.  Ms. Board Attorney said that she would get right on it, and the Board reconvened in open session.

Bob and the other Board members were delighted to receive the requested opinion letter and draft waiver form from Ms. Board Attorney the following week.  Bob promptly shared the waiver form with Coach Rock and told him to have parents sign the waiver form.  Bob went a step further, however, and he posted the letter from Ms. Board Attorney on Facebook with a personal rant about Attorney Bill Alot and his bogus claims, stating that Sammy and his parents should be ashamed of themselves.

Given that football is indeed played in the rain, did the Nutmeg Board of Education handle Sammy’s claim appropriately? 

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In a word – no.  Liability waivers are not the answer to such concerns, and the Nutmeg Board needs training on the Freedom of Information Act (FOIA).

At the outset, we note that the Board violated the FOIA in several ways.  Whenever a public agency convenes in executive session, it must vote to do so, which vote will be effective only if it passes by a two-thirds majority.  Moreover, to do so, public agencies must state the reason for executive session.  Notably, as to pending claims and litigation,” the courts have ruled that agencies must also identify the specific claim under discussion to “fairly apprise the public of the business to be transacted,” as required by the FOIA.  

That said, Nancy Newshound was incorrect in claiming that the Board was not permitted to convene in executive session because “executive session” was not listed on the agenda.  Executive session is a procedural status, not an agenda item.  To be sure, public agencies must include an item on the agenda that, either in whole or in part, is privileged to executive session.  But public agencies can decide at the meeting to convene in executive session to discuss any such privileged item.  Indeed, more generally, it is inadvisable to include “Executive Session” per se on the agenda because it is not an agenda item.  Rather, in posting items for discussion in executive session on the agenda, it is appropriate to include the note “(discussion proposed for executive session”) on the agenda as a courtesy to the public.

In voting to go into executive session, public agencies must also invite any persons who are not members of the public agency to attend the executive session, and such persons may attend the executive session only for the time when their opinion or testimony are required.  

There was one last problem with this executive session.  First, given that executive session is an exception to the rule of public access to meetings of public agencies, the privilege is narrowly construed.  The Board violated the FOIA when it discussed waivers of liability during an executive session discussion about a pending claim.  It is hard, but imperative, that board members limit discussion in executive session to the privileged topic, and all board members must be vigilant against letting the discussion stray from that topic.

By posting the letter from Ms. Board Attorney on Facebook, Bob created another problem.  Such communications are privileged by the attorney-client relationship, and that privilege belongs to the Board as a whole, not to Bob or any other individual Board member.  Unless the Board itself decides to waive the privilege, Board members must maintain the confidentiality of legal advice from board counsel.  If a board waives the privilege, however, the legal advice and all related communications will become subject to disclosure.  

In addition, there is no general right to conduct attorney-client discussions in executive session.  Such discussion may be held in executive session in only two ways: (1) the agenda item itself must be privileged (as was the case here under “pending claims and litigation”) or (2) the board must be discussing a confidential written communication from its attorney.  

Finally, despite the interest of the Nutmeg Board in waivers, requiring parents of football players (or any other parent) to sign waivers of liability will not be effective.  While public agencies can settle claims after the fact, the courts have ruled that waivers of future liability are unenforceable because they violate public policy.  First, the public agency would have unfair leverage in asking for waivers, and such “contracts of adhesion” are often unenforceable.  Second, any such waiver could result in the released party being less careful, given that there would be no risk of liability.  Thus, boards can warn against risks, but they cannot avoid liability by requiring parents or others to sign liability waivers.