Working Together

In our sister blog (Education Law Notes), there is a post concerning the use of executive sessions under the Freedom of Information Act to discuss the elimination of employment positions and discharge of  employees.  While the post (which author Mark Sommaruga based upon an article he wrote for June 2025 edition of the CABE Journal) was addressed to boards of education, it may apply to other municipal/governmental facing these issues, so we are also including it here on Working Together.

Unfortunately, some school districts may be facing uncertain fiscal times and thus have to make difficult decisions with respect to reducing staff.  In addition, districts still must deal with ongoing employee performance issues (and subsequent employee challenges to any disciplinary consequences).  In this context, questions often arise regarding whether and to what extent board of education-level discussions and proceedings are permitted to take place in private in light of Connecticut’s Freedom of Information Act (FOIA).  The following is a refresher with respect to the FOIA’s application to board of education discussion and action on matters related to personnel and staffing.  

Executive session-the general rule.

  Among other things, the FOIA provides that a public agency may enter into executive session for the purpose of discussion “concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that the discussion be held at an open meeting.”  This exception covers many aspects of the employment relationship, including hiring and (unfortunately, when things go wrong) firing. The exception is for the purpose of protecting the privacy rights of the employee.

Can we discuss general staffing/reductions in force issues in executive session?

Nope. This executive session provision only applies to a discussion regarding a specific employee, not general classes or categories of employees.  Connecticut’s Freedom of Information Commission (FOIC) has repeatedly held that public agencies cannot lawfully meet in executive session under this “personnel matters” related provision without discussing an individual whose privacy may be affected. As such, a discussion of whether to eliminate a school program or to reduce the overall level of staffing in general (without any tie to a specific person or persons) would not be covered by this executive session provision.  Since board-level budget discussions are almost always focused on the elimination of positions generally (not specific employees), such discussions cannot be held in executive session except in highly unusual circumstances.

On the other hand, if the board is discussing the employment of specific individuals, the above executive session provision is implicated.  However, prior to having such an executive session on (for example) the possible dismissal of a specific employee, if the board is seeking to use the above executive session provision, it must notify the employee(s) involved that they will be discussed in executive session, so that they can exercise their right to require the board to have the discussion in public.

Teacher non-renewal and terminations?

The Teacher Tenure Act gives 1) non-tenured teachers the right to challenge the non-renewal or termination of their employment, and 2) tenured teachers the right to challenge their proposed termination.  While a non-tenured teacher cannot challenge a non-renewal based upon a reduction in force or elimination of position, a tenured teacher would have the right to challenge a proposed termination with respect to the same (or any other reason), whether via a hearing before the board of education or an impartial hearing officer.

With respect to teacher termination hearings for tenured teachers, Connecticut General Statutes §10-151(d) provides: “The hearing shall be public if the teacher so requests or the board, subcommittee or hearing officer so designates.”  While there is no case on point, this Tenure Act provision appears to trump typical FOIA executive session requirements with respect to tenured teacher termination hearings, although the author humbly believes that a board could override a request for a public hearing for portions of a hearing addressing other privacy interests (e.g., discussion of personally identifiable information concerning a student, which is protected by federal law).  However, no such provision exists for non-tenured teachers, and non-tenured teacher non-renewal/dismissal hearings would be governed by the FOIA, with the ability to have the evidentiary portion of any hearing in executive session limited to 1) confidential records, such as teacher evaluation records, or 2) other privacy rights (such as student information and truly confidential personnel/health information).

What about the board’s deliberation with respect to a teacher dismissal after a hearing?  

Generally, the board could deliberate in executive session under the above-mentioned personnel matters related provision, subject to the right of the employee to require this discussion to be in public.

What about non-certified staff?

With respect to a grievance hearing brought by non-certified employees challenging their dismissal, the FOIC and courts have held that the ability to hold the evidentiary portion of a grievance hearing in executive session would be limited to other privacy rights (such as student information or truly confidential personnel/health information). In addition to the ability to deliberate in executive session (subject to an employee’s right to have the discussion in public), the collective bargaining non-meeting provision could arguably provide another basis to deliberate on grievances in private. 

Does the employee have the right to enter into executive session for deliberations? 

Sometimes, folks confuse the employee’s right under the FOIA to have the discussion in public with a right of that employee to enter into the executive session.  That is not the case.  The board can prevent an employee who is the subject of a board-level hearing from entering an executive session.     

Final reminders.

Please remember that: 1) your agenda items must still be reasonably specific for any of these anticipated actions; while you need not name the employee, you should identify the type of employee at issue; 2)  any vote to take action must be in public; and 3) there may be other available reasons to enter into executive session (for example, discussion of written attorney-client privileged communications from your lawyer).    

Please note: This post was adapted from an article written by the author for the June 2025 edition of the CABE Journal; it is republished here with permission.