Education Law Notes  

Board members sometimes just assume that whenever they enter into executive session under Connecticut’s Freedom of Information Act (FOIA), they can invite anyone they want into the session.  Furthermore, boards often assume that certain personnel (such as superintendents) have a right to be present. Connecticut’s Freedom of Information Commission (FOIC) recently stated “not so fast” and provided some reminders on the proper conduct of executive sessions.

1. What does the FOIA actually say? The FOIA (Connecticut General Statutes §1-231(a)) states: “At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion.”

2. What about our superintendent? As you may remember from board in-services and trainings, under law (Connecticut General Statutes §10-157(a)), superintendents “serve as the chief executive officer of the board [of education].”  In addition, many superintendents specifically have a provision in their contracts providing that they have a right to attend executive session (except when their contract is the subject of the session). Nevertheless, back in 2011, the FOIC held that it was improper for a superintendent to be present at an executive session during a board retreat in which the board was discussing the performance of a fellow board member, as the FOIC found that the superintendent did not present testimony or opinion pertinent to that matter during the executive session. Understanding Connecticut’s Freedom of Information Act, by Mark J. Sommaruga (6^th Edition 2023), at pp. 58-60.

3. Was this a one-off decision by the FOIC? Nope. Just recently (May 22, 2024), the FOIC found that a school board violated the FOIC when it invited its superintendent to be present at an executive session during which it discussed a Commission of Human Rights and Opportunities (“CHRO”) complaint against the board with its attorney. Apparently, the superintendent did not actually present any “testimony or opinion” during this executive session.  The FOIC rejected the board’s apt (in my unbiased opinion) assertion that since the superintendent had provided testimony and opinion regarding this CHRO complaint at a prior executive session, it was reasonable for the board to anticipate that the superintendent’s testimony or opinion might be necessary at this specific executive session.  The FOIC found that a) even if the superintendent is referred to as the board’s CEO by law, that does not make the superintendent a member of the board, and b) regardless of the prior executive session, the superintendent was improperly permitted to be present at an executive session where the superintendent did not provide any testimony or opinion.

It’s not just about superintendents. Also on May 22, 2024, the FOIC issued a decision involving alleged improper attendance at an executive session of a school building committee by a) the principal of the school that was the subject of the building committee, and b) a member of the town’s advisory committee for people with disabilities (who was also a liaison to the building committee). The building committee asserted that these two individuals had unique expertise and could provide input on their areas of expertise, if necessary, and that it was likely that both individuals’ opinions would have been solicited due to the nature of the executive session topic (certain RFP proposals).  In rejecting these arguments, the FOIC noted that neither individual was asked questions during the executive session and neither participated “in any tangible way.” In addition, both individuals were present during the entire executive session (beyond when their presence could have been necessary to present opinion or testimony-even if it had been given). 

4. What about executive/administrative assistants? It may be appropriate for a recording secretary or administrative assistant under certain circumstances to be present at an executive session if necessary to assist with a board’s deliberations (by keeping a record). However, be warned: the FOIC found in 2017 that a municipality violated the FOIA by inviting the first selectman’s administrative assistant into executive session “just in case” she was needed to provide information to the board of selectmen about pending complaints against the town, but where she did not offer any testimony or opinion and where she still stayed for the entire executive session. 

Final Thoughts And Lessons (i.e., say something).  While the author respectfully disagrees with the FOIC’s recent decisions, it appears that the FOIC believes that even high-level employees of an agency should be present at an executive session only if they are going to at least opine in some manner on the issue being discussed. While certain persons would seem to be rightfully in attendance at all executive session, such persons must actually express their opinions, and otherwise contribute “in a tangible way” in order to lawfully attend.  The mere fact that a person may have an opinion or specialized knowledge is not enough to justify attendance at an executive session unless the person actually says something.  As such, it may be a best practice for board members to actively seek attendees’ opinions during executive sessions.  In addition, even if such an attendee was properly present for a part of the executive session, their presence cannot last beyond the point where their presence is necessary.

Please note: This article was originally published in an article written by the author for the September 2024 edition of the CABE Journal and is reprinted with their permission.