When a Meeting is Not a Meeting, at Least According to the FOIC

LR-Conference-People-Close-up-hands-on-tableMost public entities are now intimately familiar with the long reach of the Freedom of Information Act (“FOIA”) into the conduct of agency meetings.  A recent case from the Freedom of Information Commission (“FOIC”) reminds us that whether a “meeting” that has occurred must comply with the FOIA, is more than just an existential question, as opposed to when school board members act on their own and are not subject to FOIA requirements.

In Laubstein v. Chairman, Board of Education, Bethany Public Schools, #FIC 2013-706 (September 10, 2014), the Board of Education (a nine member body) voted to move a school building project forward to the Town’s Board of Selectmen.  After that vote, the Board of Education had no further official involvement with the building project, and the Board of Selectmen was then responsible for taking all of the steps necessary regarding the project, including conducting a referendum

Subsequently, several members of the Board of Education who were also parents of students attending the school joined with other parents and formed a “Parent Ambassador Group” (“PAG”) in order to urge others to vote in favor of the building project at the referendum.  The members of the PAG communicated with each other by e-mail regarding strategies for mobilizing other parents to vote in the referendum (which ultimately failed).  The PAG members met together as a group on October 28, 2013 at the home of one of the group’s members (hereinafter, the “home gathering”).

A citizen then filed a complaint with the FOIC, alleging that the e-mail communications and the home gathering were both illegal meetings, in violation of the FOIA’s open meeting requirement in that 1) four Board of Education members were part of the PAG, and 2) the complainant suspected that Board of Education business was discussed at the home gathering.

In dismissing the complaint, the FOIC found that neither the PAG members’ e-mail communications, nor the home gathering, was a “meeting” under the FOIA.  The FOIC found that at the time of the e-mail communications and the home gathering, the Board of Education no longer had “supervision, control, jurisdiction or advisory power” (as per the definition of a “meeting” under the FOIA) over the building project.  The FOIC further found that none of the Board of Education members who joined in the activities of the PAG did so in their official capacities, and that the Board of Education itself never sanctioned the activities of the PAG.

Lessons learned?

This decision does not give carte blanche for school boards to discuss matters at meetings outside of the board of education context and then claim that they are private because that they are outside of their “supervision, control, jurisdiction or advisory power.”  The keys in Laubstein were that 1) the Board members were acting in their own capacity as citizens, 2) their actions had not been sanctioned or authorized by the Board, and 3) the Board clearly could take no further action with regard to the building project.  However, any official action by a school board to authorize the conduct of a “few” board members could be viewed as creating an “ad hoc” or “de facto” committee covered by the FOIA.

Outside of the FOIA realm, what may be of interest to school board members is what is NOT discussed in the Laubstein case, namely, the impact of laws  governing the expenditure of public funds to influence the outcome of a pending referendum.  Connecticut General Statutes §9-369b, as amended by Public Act 13-247.  What if board members used their board member e-mail accounts to urge others to pass the referendum?  In a strange way, while using a personal e-mail account as opposed to a private e-mail account does not matter under the FOIA, it does matter under the laws prohibiting the expenditure of public monies to influence the vote at a referendum.  The board-provided e-mail account is public equipment and may be deemed a public expenditure, and cannot be used to send unsolicited communications to residents to urge passage of a referendum, especially in light of the 2013 amendments to the referendum advocacy statutes.

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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s School Law practice on federal and Connecticut law as it pertains to educational institutions, whether those institutions be public school districts, private K-12 schools, or post-secondary colleges and universities.

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