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See You In Court – September 2022 – Education


The members of the Nutmeg Board of Education were sick and tired
of getting slammed on social media. With every decision they made,
it seemed, someone would be upset and unload on social media about
the Board members, questioning their actions in offensive and
personal terms. Compounding the problem, teachers and other
employees will also join them, critiquing the Board members for
their decisions.

Veteran Board member Bob Bombast decided to act, and he sent an
email to his fellow Board members with a proposed new social media
policy. In this draft policy, Bob proposed strict prohibitions
against employees making “unkind” or
“insulting” remarks about the Board members. Bob
explained to his Board colleagues that a policy would be the best
way to hold the “cry-baby” teachers and others
accountable. Anticipating opposition, however, he told the Board
members to keep his idea under their hats until the Board was ready
to vote on the new policy. To keep his proposed policy confidential
until then, Bob carefully marked it “DRAFT” and he even
included Ms. Board Attorney on copy.

Most of the other Board members were just as sick as Bob of the
continual abuse on social media, and by return email they
enthusiastically endorsed Bob’s proposed policy. Some Board
members even included in these emails critical and, at times,
vulgar comments about the parents and employees whose social media
posts had insulted them.

Board member Mal Content, however, was not so sure, and in a
conversation with local reporter Nancy Newshound, Mal let slip that
he was concerned about Bob’s proposal to “muzzle”
employees. Nancy was understandably intrigued, and she promptly
sent Bob a request for “the draft policy and all related
emails in accordance with the FOIA.”

When Bob received the request, he was happy he had been cautious
in disseminating the draft policy. Bob promptly wrote an email back
to Nancy as follows:

Hello Nancy. I can neither confirm nor deny the existence of
some purported policy about social media posts. If I did draft such
a policy, however, it is not subject to disclosure under the FOIA.
Any such draft policy would be just that – a
“draft” that is exempt from disclosure under the FOIA. As
a reporter, you should know that.

When Nancy Newshound received Bob’s email, she promptly
wrote back, telling Bob in no uncertain terms that she would be
filing an FOIA complaint. Bob was unfazed, and he gave Nancy a
call. “Neither of us need to waste our time before the Freedom
of Information Commission, do we?” Bob asked. “I admit
that I circulated a draft policy, and in due time you will get a
copy. However, it was a draft, and the law is clear that drafts are
exempt from disclosure. Moreover, Ms. Board Attorney was included
on the email when I sent it out. The draft and the related email
correspondence were all privileged confidential attorney-client
communications. But I promise that you will be the first to know
once the policy is public!”

Nancy thanked Bob for the explanation. Bob was therefore
surprised a month later to receive notification from the Freedom of
Information Commission that Nancy had filed a complaint against
him, claiming that Bob’s denial of her request for the draft
policy and related email correspondence violated the FOIA.

Does Nancy have a case against Bob? Should she have filed
against the whole Board?

Nancy has a winning case against Bob. To be sure, Nancy could
have filed a separate complaint against the Nutmeg Board of
Education, as discussed below. However, board of education members
are public officials, and the FOIA defines “public
agencies,” the entities subject to the requirements of the
FOIA as including public officials. As a “public agency,”
Bob (or school district employees on his behalf) must respond to
requests for information, and here Bob withheld public records from
disclosure in violation of the FOIA.

Bob claimed in response to Nancy’s request that the social
media policy was in draft form and, as such, was exempt from
disclosure. However, the FOIA exemption from public disclosure for
“preliminary drafts and notes” is not the whole story.
Conn. Gen. Stat. § 1-210(e) requires disclosure of
“recommendations or any report comprising part of the process
by which governmental decisions and policies are formulated,”
provided that disclosure is not required of “a preliminary
draft of a memorandum, prepared by a member of the staff of a
public agency, which is subject to revision prior to
submission to or discussion among the members of such
agency
.” (Emphasis added). In sum, when Bob
shared his draft with the other Board members, the
“preliminary drafts” exemption from disclosure was
lost.

Bob also relied upon the exemption from disclosure of records of
“communications privileged by the attorney-client
relationship.” However, Bob’s reliance on this exemption
was also misplaced. Confidentiality of communications between
boards of education and their attorneys is an important protection
that permits board members and other school officials to
communicate candidly with their attorneys. However, the privilege
of confidentiality applies only to requests for legal advice and
related responses. Communications between a school district
attorney and the board members unrelated to legal advice (such as
advice on public relations, as the Commission held in one case) are
not privileged.

Here, Bob did not ask Ms. Board Attorney for legal advice about
his draft social media policy (though perhaps he should have).
Rather, he simply included her on the email he sent to his fellow
Board members. Accordingly, those records were not privileged, and
they should have been provided to Nancy pursuant to her
request.

The records Bob withheld from disclosure were not the only FOIA
problem here. The discussion of the draft policy and related issues
by the Board members by email was, of course, a violation of the
FOIA because this discussion among a quorum by electronic means
constituted a “meeting” of the Board that should have
been posted. Moreover, the emails that Board members exchanged
about the policy (and parents and employees) are also public
records that should have been disclosed to Nancy pursuant to her
request.

Finally, the Nutmeg Board of Education will have other legal
problems if and when it adopts the social media policy proposed by
Bob. Prohibiting school district employees from making
“unkind” or “insulting” comments about Board
members would raise profound issues under the First Amendment.
Public employees retain their free speech rights when speaking on
matters of public concern except in limited circumstances. First,
when public employees speak “pursuant to duty,”
i.e., as part of their job responsibilities, their speech
is not subject to First Amendment protection. Accordingly, the
classroom is not a forum for teacher free speech. Second, speech by
a public employee may not be protected if it is disruptive of the
operation of the employer. In such cases, the courts balance the
importance of the speech against its disruptive effect to determine
whether the speech is protected. As a general matter, however,
public employees have the right to speak out on matters of public
concern, even when school board members find such remarks to be
“unkind” or “insulting.” A prohibition against
such comments is too broad and would violate employee free speech
rights.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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