FOIC Issues Split Decision In Appeal Of Closed School Board Session

The Connecticut Freedom of Information Commission (FOIC) this week supported part of an appeal filed by The Newtown Bee and its associate editor, John Voket, against the Newtown Board of Education, finding that the board improperly warned the public of an executive session in late 2005. But the commission rejected the newspaper’s contention that subject of that closed session — discussion of the school board chairman’s performance — was not a valid reason to exclude the public under the provisions of the state’s FOI law.

 The FOIC unanimously accepted a hearing officer’s recommendation that found the school board acted in violation of a state statute regarding its notice of an executive session in late 2005. During a disposition hearing Wednesday afternoon in Hartford, the full FOIC agreed that the public notice for a December 20 Board of Education meeting “failed to state the reason for the executive session…and therefore violated” provisions set forth in Section 1–225 of the Connecticut General Statutes.

In its appeal to the FOIC, dated January 11, 2006, The Bee also requested that the executive session itself be termed illegal because it was convened to conduct discussions regarding a challenge to incumbent chairman Elaine McClure. The newspaper sought to have the commission void any and all actions taken subsequent to, and as a result of, discussion held during the secret portion of the meeting.

Sources who requested anonymity divulged to Mr Voket that the executive session was called so comments made by another board member who sought to challenge Ms McClure for the chairman seat would be kept off the public record. That challenge came from school board member Paul Mangiafico.

The Board of Education convened the December 20 executive session listing “personnel” and “legal” matters as its justifications for the closing the meeting to the press and public.

A Newtown Bee story in the December 22, 2005, edition reported that the board emerged without comment from the closed session and voted 4 to 2 to reelect Ms McClure as board chairman. Following that meeting, Mr Mangiafico, who cast one of the two dissenting votes, said he believed the school board “needed a change in [its] 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.”

The FOIC this week supported the testimony of Ms McClure and school board member Andrew Buzzi, Jr, who said discussion during the December 20 executive session was exclusively limited to a formal performance evaluation of Ms McClure. As a result, the FOIC found that the school board acted within its legal right to call an executive session.

When contacted Wednesday evening after the ruling, Mr Mangiafico said all parties involved should learn something from the outcome, but declined to comment on whether the school board’s executive session was held to conduct a formal performance evaluation as Mr Buzzi and Ms McClure testified.

“I’m not supporting anything they said,” Mr Mangiafico told The Bee. “The outcome [of the hearing] is the outcome. We go on and we learn our lessons.”

In a written statement following the ruling, Ms McClure said, “The Freedom of Information Commission decision correctly confirms that the Board of Education was well within its legal rights to go into executive session to discuss the performance of a board member. The accusations by The Bee that this was illegal, and that other unrelated matters were discussed in executive session, have shown to be false.”

The executive session provision of the state’s General Statutes allows meetings to be closed from the public for the purpose of discussing “the appointment, employment, performance, evaluation, health, or dismissal of a public officer or employee.”

The Board of Education was represented in the proceedings by Floyd J. Dugas, Esq.

The Bee was represented by New England Press Association’s lead counsel Robert Bertsche of the Boston-based firm Prince, Lobel, Glovsky & Tye, LLC.

Mr Bertsche noted following the commission’s decision, “The Board of Education cleverly exploited that loophole when, on December 20, it reelected the school board chair in a closed vote, without any public discussion. The public will never know what the board members told each other about the chair’s qualifications to oversee a department that controls a $60 million budget.”

While The Bee has 45 days to appeal the FOIC decision to the state Superior Court, Bee Managing Editor Curtiss Clark said this week that the newspaper would not challenge the commission ruling, but would support instead a legislative remedy to close the loophole in the Freedom of Information Act that excludes the public from frank discussions by its own elected officials about the direction and leadership of public boards and agencies.