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SEE YOU IN COURT! - April 2020

CABE Journal

April 1, 2020

The Nutmeg Board of Education has four standing committees, including the Policy Committee, which has three members.  Most of the time, an indifferent public ignores its meetings.  This spring, however, was a different story.

Veteran Board member Bob Bombast chairs the Policy Committee, and at the last meeting of the full Board, Bob lamented the critical remarks members of the public regularly make at Public Comment.  “We do, we do, we do for these people, and this is the thanks we get.  Why should we bother to give these crepehangers an audience? At the next meeting of the Policy Committee, I will be proposing that we amend our bylaws to eliminate Public Comment from our standard agenda.  If the good people of Nutmeg have a problem with us, let them send us their complaints by email.” 

Bob’s comments resulted in a protest on social media.  Someone posted the time and place for the next Policy Committee meeting, and soon dozens commented that they would make their voices heard at the next Policy Committee meeting.  Even Bob was taken aback, and he asked Ms. Board Attorney to provide a legal opinion on Board’s rights to limit or eliminate Public Comment. 

About fifty angry people were in the audience at the next meeting of the Policy Committee, and many of them were giving Bob the evil eye.  Given the controversy, all the other members of the Board were also in attendance.  Bob gamely called the meeting to order, but he was quickly interrupted by Nancy Newshound, ace reporter for the Nutmeg Patch, the new online newspaper covering Nutmeg and environs.

“This is an illegal meeting!” Nancy claimed loudly.  “What was posted was a meeting of the Policy Committee, but what I see is a meeting of the Board of Education because every single Board member is present.”

Bob started to lose it, responding testily to Nancy, “This is a public meeting, and the other Board members have the same right to attend as you do!!”  But fellow Board member Mal Content sent him a text telling him to calm down.  When Bob heard his phone buzz, he read the text, nodded to Mal and moved on with the meeting.

“As some of you know,” Bob began, “I think that Public Comment is a waste of time, and I recommend to the Committee that we revise our policy to eliminate Public Comments from our agenda.  What do you all think?”

Mal Content and Penny Pincher were the other two members of the Committee, and the crowd intimidated both of them.  “Can we even do that?” Penny asked.

Bob responded by suggesting that the Committee go into executive session to discuss an “attorney-client privileged communication.”  Mal and Penny promptly agreed, and after Committee members moved to go into executive session, Bob asked that all people present other than Board members leave the room.  

Nancy Newshound interrupted again, stating, “You can’t go into executive session, because it is not listed on your agenda!  I will be filing a complaint with the Freedom of Information Commission!”

“File away, Nancy!” Bob responded, and he and the other Board members proceeded with the executive session. 

Has the Policy Committee violated the FOIA?

*         *         *

Yes and no.  The Committee has the right to convene into executive session, but the way it did so violated the Freedom of Information Act.

At the beginning of the meeting, Nancy claimed that the presence of a quorum of the Board of Education at a committee meeting violates the FOIA.  Presumably, her theory is that when a quorum of the Board attends a meeting posted as a committee meeting, their presence transforms the gathering to a meeting of the full Board, which was not posted.

Under the Freedom of Information Act, that is not necessarily the case.  Conn. Gen. Stat. § 1-200(2) provides: “A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.”  Thus, the mere attendance of all the Board members at the meeting of the Policy Committee did not cause a problem in the first instance.

That said, the actions of the Board here did violate the FOIA.  The other Board members were not merely present at the meeting.  Rather, as evidenced by their being permitted to attend the executive session, they were treated as Board members, and the gathering thus became a meeting of the full Board, which was not posted.  To avoid this problem, whenever board members attend a meeting of a committee of which they are not members, they should be treated as any other member of the public.  That includes limiting their participation in discussion to the same extent as members of the public and even making sure that they not sit at the table with the committee members.

Nancy’s other objection was that the Policy Committee should not have convened in executive session because the agenda for the meeting did not include executive session.  In this respect, Nancy was incorrect.  Public agencies are not required to include “executive session” on their agenda.  Rather, they may move into executive session by a two-thirds vote whenever they are discussing a topic privileged to executive session.  Executive session is a procedural status, not an agenda item. 

In fact, including “executive session” on the agenda without more can invite an FOIA violation because the members may be tempted to go into executive session without properly identifying the reason for executive session in the motion.  Here, the members of the Policy Committee (but not the other members of the Board) had the right to convene into executive session to discuss a privileged communication. However, the FOIC has ruled that the stated reason for an executive session relating to confidential attorney-client communications should include the topic of the legal advice.

Finally, we note that Mal’s text to Bob also raises issues under the FOIA.  It is no surprise that Mal created a public record with his text (though its content was benign).  What may be surprising is that Mal’s text could also be a violation of the open meeting requirements of the FOIA.  The right of the public to attend a meeting includes the right to hear what is being said.  A text is perforce silent, and a text that relates to the public’s business received by a board member during a board meeting may be considered denial to the public of access to the meeting.

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