Freedom Of Information Hearing Set On Closed School Board Session

The Connecticut Freedom of Information Commission has scheduled a March 28 hearing on a complaint of closed session held by the Board of Education last December. In its appeal, The Newtown Bee and Associate Editor John Voket allege that the Board of Education inappropriately utilized an executive session to prevent the public from hearing why school board member Paul Mangiafico was challenging Elaine McClure for her elected seat as chairman.

Following that December 20, 2005, meeting, the school board convened in public and immediately conducted its election for chairman. Ms McClure, the incumbent, was reelected by a margin of 4 to 2, with Mr Mangiafico and David Nanavaty casting dissenting votes. Once the motion was made and seconded to call the vote, Mr Mangiafico claimed subsequently that no opportunity for discussion on the motion was afforded to Mr Nanavaty or himself.

The newspaper’s appeal of the session asserts, in part, that the session was not accurately advertised to the public on its agenda.

Prior to the meeting Ms McClure apparently sought a legal ruling on Freedom of Information statutes and precedent cases to justify calling for the closed session. In a fax sent to The Bee by School Superintendent Evan Pitkoff following the meeting, an attorney from the firm Shipman & Goodwin noted that “the executive session can…apply to discussion concerning the appointment, performance or evaluation of board members themselves.”

“I believe if an interested resident was to access that agenda, they would likely conclude that the closed session was called to discuss either a pending lawsuit or other legal matter, and/or to discuss a an issue related to a staff member or contractor employed by the district,” Mr Voket said. “If they sought legal justification for the session ahead of time, why didn’t they advertise the session was closed to discuss the evaluation or performance of an elected official?”

The Bee previously reported that the Board of Education convened its December 20 executive session listing “personnel” and “legal” matters as its justifications for the closing the meeting to the press and public. The agenda for the meeting in question was filed with the Town Clerk on December 16 reflects this information, as well.

In a Newtown Bee story in the December 22, 2005, edition, reporter Susan Coney wrote that the board emerged without comment from the closed session and voted 4 to 2 to reelect Ms McClure. Subsequently, Vice Chairman Lisa Schwartz and Secretary Andrew Buzzi were unanimously reelected to their posts.

Following that meeting, Mr Mangiafico said he believed the school board “needed a change in the leadership direction.”

“Obviously that didn’t happen,” Mr Mangiafico said. “David [Nanavaty] and I were rather strong in our opinions, and we had to vote our conscience. I don’t know if anyone has ever been elected as chairperson without a unanimous vote before.”

Superintendent of Schools Evan Pitkoff, who was also excluded from the closed session, explained later that no “legal” issues were discussed in the closed session and that the exemption from the state’s Freedom of Information provisions for public meetings covering discussion of “personnel” includes the “evaluation of board members themselves.”

Mr Voket said he understands the spirit of the statute, but contended that its “technical application” was not appropriate in this instance.

“In an instance where an elected board may want to remove someone because that member is exhibiting the signs of Alzheimer’s, or there is an accusation of a severe ethical lapse or crime, I can see this statute applying,” Mr Voket said. “But to prevent the press and public from hearing why one board member feels he or she would make a better chairman? I can’t find a way to qualify that as an evaluation of performance, or imagine the law was designed to prevent the public from hearing about it or reading about it in the minutes.”

Managing Editor Curtiss Clark noted that The  Newtown Bee does not often file FOI complaints. In this instance, however, he said it was necessary. “The purpose of The Bee’s appeal is not to embarrass or chastise the Board of Education, but to assert the principle of transparency in self-government, especially when it comes to discussions about the leadership of our public schools and the direction of educational policy in our town.” 

In the appeal, which will be heard at 10 am on March 28 at the FOI Commission headquarters in Hartford, the complainants ask that if the meeting is determined to be illegal, that the FOIC require any or all actions taken subsequent to, and as a result of discussions held during the illegal meeting — including the subsequent election of the chairman — be overturned.

In that eventuality, if Mr Mangiafico is still interested in vying for the chairmanship, he would be afforded the opportunity to assert his contentions publicly, and the vote would be held again. The appeal also requests that if the school board is found in violation of FOI statutes, its members be required to attend a Freedom of Information workshop in hopes that future abuse of the law will not occur.

On February 1, 2006, The Bee received notification that the Board of Education would be represented in the hearing by counsel. Floyd J. Dugas of Bercham, Moses and Devlin, PC is the attorney of record in this matter for the Newtown board.