FOI Spokesman Weighs In on Board of Ed's Closed-Door Meeting

At least part of the Board of Education's closed-door "board evaluation" Tuesday night likely wasn't legal according to an opinion from the state Freedom of Information Commission and conversations that could be heard through a closed door from six feet away.

Tom Hennick, the FOI Commission's public education officer, said Wednesday that a "gray area" exists in determining whether boards of education can bar the public from board evaluations. Determining the legality of the school board's 6-3 vote Tuesday night to ban the public from its evaluation depends on what was discussed behind closed doors, Hennick said.

If board members evaluated each other's performance on an individual basis, or commented upon a faction of several board members, then the closed-door meeting would be legal. But if board members determined how to best conduct business as a board or set goals, the closed-door meeting would not be legal, according to Hennick.

The problem for the public, Hennick said, is that it's not possible to determine what is discussed in a closed-door meeting.

But Supt. of Schools David G. Title in Tuesday night's closed-door meeting expressed irritation at board members who disagreed with administrative recommendations in public after not expressing objections earlier and said that was the reason he didn't favor "open board discussions" that are routinely listed on Board of Education agendas. Title's comments, which could be heard clearly through a closed door in his conference room from six feet away, did not deal with individual board members, but rather were directed at the board as a whole.

The section of the FOI law that permits closed-door meetings lists as an acceptable reason: "Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting."

During the meeting, Nick Caruso, a Connecticut Association of Boards of Education staff member who served as moderator, said differences of opinion exist on whether boards of education can bar the public from board evaluations and cited a Cromwell case as an example where the FOI Commission ruled that they could.

Caruso Tuesday night identified the case as Wolf vs. Cromwell Board of Education but said Thursday that he had never been able to find the case online and that it dated to 1988. He said the case was first mentioned to him 15 years ago and was the only case he was aware of that dealt with whether boards of education could conduct board evaluatione behind closed doors.

Mitola said Thursday that he had looked for the case as well and hadn't been able to find it. Hennick wasn't available Thursday afternoon to provide information on the case.

On Tuesday night, Mitola said he wanted to get an opinion from the board's attorney before closing the meeting to the public, but when school board member Tim Kery, who arrived late, objected to the public's presence and made a motion to bar the public from the meeting, Mitola voted in favor of the motion. School board Vice Chairman Pam Iacono also had said she wanted to wait for an opinion from the board's attorney, but she, too, voted in favor of Kery's motion.

The Board of Education's agenda that evening made no mention of an executive session.

On Thursday, Mitola said he believed the closed-door meeting was legal and that he wouldn't have voted to go into executive session if he didn't. He said he hadn't consulted with the board's attorney on the question because he wanted to talk to Title and other board members first. He added that Fairfield's school board historically has held its board evaluations behind closed doors.

Mitola and Caruso said they couldn't talk about the nature of what was discussed in Tuesday night's closed-door meeting - if it dealt with evaluations of board members or the way the board conducts its business - but they reiterated that they believed the meeting was legal.

Caruso said most school boards hold their evaluations behind closed doors. He said a board attorney in one municipality recommended against it and other boards didn't bother because no one from the public was present. "We constantly ask the question because any clarification we can get...We certainly don't want to give information that can harm them [school board members]," he said on Thursday. "The FOI Commission probably could be clearer on a lot of things."

Caruso said he advises board members who have questions about the legality of closed-door evaluations to get an opinion from their attorney since the attorney would represent them if an FOI complaint were filed.

Mitola said he believed Fairfield's school board was "very transparent" because its meetings and subcommittee meetings are open to the public, allow for public comment and documents are posted on the Board of Education's website.

Mitola said he believed confusion arose because Tuesday night's agenda initially listed the meeting as an executive session but Sue Brand, the board's immediate past chairman, had the agenda changed to an open session on Monday because she didn't believe the board could conduct the evaluation behind closed doors. Mitola said Brand changed the agenda without consulting him. Brand was one of three board members to vote against going into executive session Tuesday night.

"When those concerns were raised, I looked into it, checked with CABE which said you could," Mitola said.

The reasoning behind having board evaluations behind closed doors is to allow "a free exchange of information between public officials in question so problems can be hashed out," Mitola said.

"It's very difficult for anybody, a public official or otherwise, to discuss things like that in front of the public," Mitola said.