001Please stand for the pledge of allegiance. I pledge allegiance to the flag, United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all. So tonight, the only on the agenda is the procedures for establishing the board of education budget in the city of Bristol and it will be presented by Jessica Ritter and Tom Looney. Um like to just to the mayor and to both city council for coming tonight and working together toward creating the budget this year. And before we move into the presentation, I'd like to call the mayor up um so that she can say a few words. >> Good conversation changes if the or any indication. I think that we're on our way. We've already come up with two or three
002major table and knowing that even though some of us feel that we're on one side of a budget as opposed to the other side of the budget one budget and so I'm hoping that we will to refresh on certain things. Uh on behalf of the board of finance, I'd like to uh thank uh everyone for getting together and looking to uh get through the process in a collaborative uh manner. I think this is a good first start to get everyone together and kind of get on the same page and make sure that we're we're all working together as team Bristol. That's really all. Thank you. >> Just have a request from the chat. If you can just make sure you're talking into the microphone. >> Is the one that's taken wearing microphones? We go. Really
003smart. Jessica and Tom here because they have really good ideas. No. So, I just wanted to introduce uh Jessica Ritter and Tom Looney who serve as council to both the board of ed and the city. And so because this is a collaborative B, they are able to join us and provide us um with an overview of the laws that govern responsibilities um to the budget. So um good evening everyone. It's a pleasure to see you and and I must say I've worked with boards of ed for many years uh but I can't remember ever a collaborative meeting like this. It's just a I think a really great idea to get us all in a room and talk through a an important subject that all of you have to address in your different responsibilities. Uh and
004um I also wanted to just say that uh Jessica and I uh like to answer questions. So, if as we're going through you have questions, I think we'll have plenty of time uh to answer those questions. Um Jess and I kid about the fact that she loves PowerPoints and I'm not so much uh a PowerPoint person, but I think uh Jess's uh uh preparation of this PowerPoint will be very helpful as you go through. But I also just wanted to explain what we've provided to you. We provided um the slides to the PowerPoint um but we've also provided a reference document um including footnotes. Isn't that exciting? And it talks about the process and gives the authority for the different steps in the process and the different points uh we're going to be making. I
005note that a couple people just walked in. We have plenty of materials. Uh so um we want to and we can keep this this as informal as possible given the surroundings. Uh so I'll just start uh I'll be talking about two things. First just the timeline and your timeline is driven both by uh Connecticut statute and by your charter and our uh so uh Jess and I went through both and have uh And just as uh may maybe or maybe not going to change the slides. Maybe you need to be near the computer. Oh, there you go. Okay. Well, the timeline is um not terribly exciting. Uh and so we'll just go through that pretty quickly. Uh and um so on the next slide we see uh essentially what uh the schedule is for all
006of you as you do your important work to adopt a budget uh for the city of Bristol including uh the board of education in March. The board will be presenting its itemized estimate uh to the board of finance uh in accordance with a statutory requirement. And I understand that the board of finance has already scheduled a meeting uh to consider the board of education request for March 16th. And then as uh we read the charter uh the board of finance is then to have a meeting to adopt its budget estimate. And uh that uh on the website shows up as April 28th. And then um an interesting um uh unique aspect to Bristol uh is that you now then have this joint meeting uh uh between the members of the board of finance and the
007members of the town council that's scheduled for May 18th and that's when the budget is uh finally established. Uh so that's uh pretty straightforward. Um what I want wanted to do as well is just talk about some of the underlying uh legal uh considerations that um govern the budgetary process and um I have some comments on each of these steps but I also would again welcome your questions as as we go through this. Uh the first consideration is uh the responsibility of the uh board of finance and you see here that after the board of ed submits its budget its estimate I should say for the cost of operating the public schools the board of finance will consider that estimate as well as the other demands on the financial resources of the city and and
008through that process the budget will be established. Um, everyone went to school. So, everyone has an opinion on how the school should operate. Uh, they uh and um the board of finance is no exception and they the members will have your opinions on how money should be allocated. Uh, the way this works under Connecticut law is that the board of education has a dual status. the uh as you probably know, education in Connecticut is a constitutional responsibility of the state of Connecticut and uh through statute that responsibility has been delegated to the board of ed. And so as compared to other city departments, the board of ed has special responsibilities and uh special authorities. Um, so the case law says that when the board of education submits its budget, you're certainly the board of finance
009is entitled to its opinion on what you would want to see uh should you be uh members of the board of ed. Um but the way the statute operates um it would uh our Supreme Court in a decision that was now many years ago 1940 uh said that the board of the responsibility of the board of finance is to exercise your sound judgment in determining and whether and to what extent the estimates of the board of education are larger than the sums reasonably necessary. And if uh the um board of finance as the board of finance exercises its discretion then the board of education has no authority to expend more than is allocated uh through that process. Uh one of the uh issues that the courts have dealt with is a tension between again allocating
010resources, attention between the fiscal authority on the one hand and the um board of education on the other. And um some years ago uh the uh town of Ellington attempted to exercise control over board expenditures uh by it was now um over 60 years ago. They said here's your appropriation and here's some more money if you spend it on specified items. And um I wasn't around and I did wasn't involved but the um it was 1963. I was 12. Um uh so uh um the Ellington Board of Ed went to court and would end up as a Supreme Court case and the Supreme Court said your responsibility uh town of Ellington is to decide how much you have available for the board of ed with due consideration for the other many important um activities that
011you fund. Uh and um but once the town of Ellington said, "We'll give you this was back when $47,000 was real money." Um they gave them made a a supplemental appropriation uh for $47,000, but only if they would spend it on specified purposes. And the Supreme Court said you cannot earmark money. uh again you have enormous discretion subject to we'll talk about a little bit later the uh MBR the management but minimum budget requirement but the board of finance has significant discretion in determining the various demands and what can be allocated reasonably to the board of education. Um but once those that allocation is made, then it's as an agent of the state in implementing the educational interest of the state, the board of education um expends those funds as are appropriated pursuant to the
012process that we're we're discussing uh today. Uh and um so you're doing great, Jess. Um uh and uh I I just mentioned the MBR and I you're all knowledgeable public officials. So I think the concept of MBR is uh something that's familiar to you. Um this goes all the way back uh to Horton versus Mascll in 1976 where the the uh Supreme Court decided that um uh it needed to intervene and decide that um funds should be allocated in an equitable way uh to uh boards of education in Connecticut. Uh so they had at the time a minimum expenditure requirement that went and it related to the educational cost sharing funds that come from the state. And part of the constitutional issue for the um legislature was that if all children irrespective of their city
013residents are entitled to an equitable education, then more funds should go to the districts with fewer resources and less funds should go to the districts with greater resources. And so the state support for education varies widely as you might imagine between cities on the one hand and and affluent suburbs on the other as we sit here today. Uh that has transformed into the minimum budget requirement. And uh stated simply um when funds are appropriated to a board of education for a given fiscal year, then it's required that and the same amount or more uh increased by whatever the increase in state funding is be appropriated for the following year. Um and so that is a state law that uh uh controls part of the budgetary process. Um and so once you go through the process,
014you've complied with complied with the MBR, the city makes its appropriation to the board of education. The second point here in the legal considerations is, and we're quoting directly from the statute, once the appropriation is made, the board of education may expend the appropriation buy in its discretion and and may make line item transfers in that regard. And uh we'll talk more about line item transfers because that has to do with the monitoring of the budget which is the responsibility of the board of education. Uh and um as um I'm sure you've all seen the board of ed budget in one form or another. It's a big document, lot of things in there. Um but as we talk about line item transfers uh that are required in order to make sure the budget is uh
015balanced at all points in the year uh the statute authorizes us to interpret line items broadly as a major area of of expenditure. So instead of the hundreds of lines in the budget, those are not considered line items for this purpose, but rather the major areas of expenditure such as personnel, maintenance uh and so on uh would be considered the line items. So boards of ed are not required on an almost daily basis to make these adjustments. It's only when uh it's necessary to move funds from one major category uh to the other. And so now we go to the next legal consideration. And um uh I really appreciate this opportunity to um uh all meet together and talk about this uh because a lot of what I'm talking about is um the result of
016unfortunate disagreements between board of education and cities. Uh and uh that's always a uh an unfortunate circumstance because then you're using funds that could be used for another purpose to argue with each other. And in fact, one of the arguments that the Supreme Court had to um Connecticut Supreme Court had to um resolve occurred uh between the city of New Haven and the New Haven Board of Education. Uh I had just mentioned this independent discretion. Once the appropriation is made, the board of ed decides if it needs to move money and uh to different purposes and that's all well and good. The city, the board of education in New Haven back in the 90s got I think a little over ambitious because they decided that they had the same independent discretion with regard to the
017capital account and they reached into the capital account unilaterally and moved some things and the city didn't like it and they sued and ended up with a Supreme Court decision. And um an important element of this overview of the legal rights and responsibilities is that as compared to the operating budget, the capital budget is a shared responsibility and the board of education does not have the same unilateral control over those funds, but rather um expenditures from the capital account may be made only um by the processes through the charter which uh go beyond uh the decision of the the board of education. Uh I do welcome questions. Maybe I'm this is all pretty basic, but here we go. Great. Yes. Uhhuh. Yes. Well, I can say one thing for sure, and that would be that
018the board of ed would not have the unilateral authority to do anything. Uh, I would analogize it to um uh you make an appropriation at the end of the year. If the funds aren't appropriated, they they revert back to the the city general fund and then uh those funds are then allocated uh from there through the Well, I was enjoying it. Okay. Uh, so back to um I would say that I I guess the term is lapse. It would lapse into the general fund and it would not be accessible to the board of ed unilaterally, but rather the city would decide whether to maintain its fund balance or to allocate those funds to another purpose. Yes. So, um, any excess funds when you close the project are just are simply put in a reserve fund
019for capital projects. Oh, I I so appreciate your clarification. If they're what? Okay. Right. >> Right. It's not spent. You didn't need it. And so you don't because that is ultimately a borrowing. So if you don't need it, you don't uh uh touch it. Well, thank you. And was that your question or >> Oh, I appreciate that. Thank you. Uh, yes, please. Mhm. Right. I appreciate that. Well, your example is particularly appropriate because the last thing you want to do is fund operating uh expenditures through bond uh bond funds. Uh so, thank you for that further clarification. Yes. Thank you. Anything else on that? Yes, please. Okay. Um yes um although there is a um a related detail um we I'm not an expert on MBR um but um Bristol is alliance district and so
020it may be that these uh opportunities to reduce the MBR are not available to alliance districts. But um for your um reading pleasure on page 14 of the material oh actually I'm not sure it would be 14 but it would be the end note um uh I think it's three um uh I quote the statute and then the exceptions where the MBR can be reduced but I think your status as a reli an alliance district limits the opportunities for deviating uh from the MBR. of course. Um and uh so the next topic that we just wanted to talk about which is a critically important topic uh is um uh the fact that although the board of education has discretion to expend the funds appropriated to it uh the law is clear that the board of
021ed does not have the authority to expend more then uh is uh allocated to it. And um the uh this goes back to the early 80s. Uh what was um happening, as you probably know, schools by law must be operating for 180 school days every year, the statutory requirement. Well, back in the early 80s, some districts in Connecticut um were running out of money, so they were closing early, and then the city would have to go and get an injunction and make them open it up. And and it was a a big mess. And um the solution that was legislated as a result of those activities is imperfect, but it's a solution. And that is that the statute was amended now to require that if the chair of the board of education projects that um
022additional funds will be needed in a given fiscal year, the chair of the board of ed uh writes to the chair of the board of finance and um asks for a supplemental appropriation. And the statute goes on to say that um uh the board of education may not expend more than it receives in such supplemental appropriation. Uh unlike teacher negotiations where if you have a disagreement, you go to binding arbitration. The statute just says this is what happens. The board of education asks and the board of finance decides whether and what funds to appropriate as long as you're still within the U minimum budget requirement which would be uh necessarily the case because your budget would be adopted in that manner. Um so that is um a significant uh part of the law that uh
023we wanted to emphasize. there is this formal procedure for requesting supplementary funds and um if uh we can go to the next is there um yeah um I've ex explaining the first uh legal consideration there um the board may anticipate a deficit and then it would request additional funds uh and this is where the transfer um requirement in the law comes in the same statute, this one statute 10-222 controls a lot of this um and and it uh says that the board of ed when there's an urgent need to make a transfer, the board of education may delegate that responsibility uh in limited circumstances to someone else like the superintendent. Um, I infer from that how could there be an urgent need for transfer unless the statute contemplates that the board of ed will never
024be operating in a de deficit. And so, and this goes back to the point I made earlier about major categories of expenditure. um that you look at these major categories, but now the board of ed has an ongoing duty to monitor the budget throughout the the school well throughout the fiscal year. And it would be through that process that the chair of the board of education would identify a projected deficit and therefore uh initiate the procedures for requesting a supplemental appropriation. Uh and so that monitoring of the board of education budget is a a a basic responsibility of the board of education as we go through the fiscal year. And um uh being an optimist, I'll point out that when you don't have uh the need for every penny that's been appropriated, the board of
025ed now under a separate statute uh uh 10-248A can place funds that are unexpended in a non-lapsing reserve fund. Um just as an aside, over the years I've recommended that a similar procedure be um adopted for special education expenditures because they are so volatile. Uh and but uh so far no one has agreed with me on that. But we can hope uh that the uh general assembly will address that in the future. Um but we do have this um fairly new uh um opportunity for boards of ed and they changed the law two years ago um such that boards of ed are in the first instance empowered to create these funds and um finally and that I was surprised when I was preparing that this has been around for five years. Um the statutes require
026that the board of ed post on its website its current and projected expenditures and revenues uh on a quarterly basis. Uh so that's uh part of the statutory uh requirements. Um and um those are the major legal considerations that uh apply to the budget process. And I'm happy to answer any other questions. Yes. Right. Uh before the budget would be created. Then through the year you identify a projected deficit. But at the beginning of the year that budget would conform with the minimum MBR All right. Right. Well, when you um I've got to be careful. I don't want to be presumptuous uh in terms of telling the board of finance how it should do its important work. Um so um all the statute says as you ask and the board of finance looks at the
027circumstances and then may or may not make a supplemental appropriation and the supplemental appropriation will be in the amount that the board of finance uh directs. Um but the um concern I have is that there is a prohibition against deficit spending and um uh words of ed are challenged um particularly with when there are anticipated expenditures and um it seems to me u but I again don't want to be presumptuous that these matters should be addressed sooner than later. Because for example, if the appropriation if you project a deficit of $2 million and um the supplemental appropriation is of 1.5 then if you know that in March you have a better opportunity to make the painful choices in terms of how are we going to reduce our expenditures in the given fiscal year. Uh the
028later that reality is evident, the more challenging it is for a board of ed to make the adjustments uh that would uh be painful but necessary to uh again comply with the requirement that there be no deficit spending. So I appreciate why waiting to the end is clean. you know, then we know exactly how bad it is. At that point, um the board of education has not had any opportunity to make the difficult judgments in terms of midyear budget uh changes. And that goes back to the ability of the board of ed to make line item transfers. If uh you you start the year and we're going to spend this amount on this and this amount on that and it turns out that there's this is more expensive and let's just um theoretically say special
029ed theoretically special ed expenditures are are exceeding the budgetary expectations. Well then two there are two choices. One is to ask for a supplemental appropriation and the other is to um reduce expenditures in other areas and shift the money to cover the overage in a particular area. And those two choices are not mutually exclusive. In other words, you might get sub supplemental funds and you might have to cut otherwise. And I know how difficult that is because through the budget process, um, boards have typically struggle with, you know, the funds that you would like to see expended, uh, for education. Uh, and so you go through that process, you get what you get, and then to have to cut further, uh, is is very challenging. Um, so I know that was kind of a long
030answer to your question, but I hope it was helpful in terms of just the timing effects, the ability of the board of ed to respond to unanticipated circumstances. Yes, please. educational purposes and I'm quoting the statute. I'm uh you know so it's very broad. It just says for educational purposes and just you have to make business judgments. No, just says for educational purpose. I think it says educational purposes. Uh and um uh so again in in terms of making those decisions as a matter of good business judgment. It would, you know, if there's a one-time overage in personnel, you know, that would be one thing, but you certainly wouldn't want to take reserve funds and fund a new budget item that's going to just like um [clears throat] uh the uh the Brit community wants
031girls volleyball and that's going to c and spending reserve funds on something like that is problematic because that you would ect you create a new program you're going to want to fund it in future years so it would be um typically uh unwise to expend the reserve funds on that purpose but I have and in the materials we've shared with you um uh we've quoted the statute um and uh yes uh it says each expenditure from such account shall be made only for educational purposes. So that's not a lot of guidance, but uh so it it does just underscore the discretion the board of ed has in expending those funds and what I'm commenting on is the practical reality of being careful not to spend those funds on a recurring expense. Any other question? Yes,
032please. Okay. [clears throat] Yes. Okay. But to build on your question, comment in practice is we call it in some places perhaps in Bristol reallocation. So the through this process adopts a budget, it's submitted. If there's that budget's not reduced, everyone's really happy. But if if the budget is reduced, then it has to come back to the board for what what's called reallocation, and they need to make the adjustments so that they start the fiscal year with the available funds in a budget that's balanced. So that June vote would be uh part of the process. Um, I know Jess has some interesting information to share on other issues. Uh but before I relinquish the stage uh uh the floor um uh are there any other questions on the the points that I've shared with you?
033Well, thank you for your good questions and guess Ritter is going to talk about some other issues. Okay, thank you Tom. Let me just make sure that this is going to work. There we go. Um so it's nice to see you all. I know many of you um in this room and for those who I don't I look forward to meeting you. Um we're going to transition from the budgetary Tom talked about and move towards procedural matters. So as you are working towards or going through this budgetary process and through your respective deliberations, we've been asked to just give a general refresher on your FOYA requirements and your FOYA obligations. So, as you may or may not know, um, Connecticut has the most extensive open sunshine laws probably in the country, which basically means that
034everyone here is a member of a governmental body. Either you're the member of the board of finance, the city council, or the board of education. You are public agencies, and therefore, you are subject to the provisions of the Freedom of Information Act. But you're not just subject to the Freedom of Information Act because you are an agent of one of those boards, but because you are a member of those boards, you yourself are considered a public agency under the law. And each member is also subject to FOYA. So these obligations apply to both your meetings and your records of public agencies. So, the reason why I say this is, and I'll talk a little bit more about this, but I think it's helpful to be thoughtful that as you're going through the budget deliberation process
035or as you are doing your work more generally as a member of a governmental entity that anything you put in writing, if you wouldn't want it shared with the Hartford Current or your local newspaper, don't put it in writing. And I don't mean that to suggest that we don't be transparent because obviously you all work for deliberative bodies and you are responsible for taking care of your business or acting upon your business within the public purview. But I just mean I want you to be thoughtful about it because I have seen FOYA weaponized over the last several years. And so for those of you who are not new, who are more seasoned board members in this room, you probably have been subject to a foyer request. and the foyer requests. There really is no mechanism
036really to limit a foyer request. So that means that anyone under the sun can say, "I want to see every single email between Shelby and Jennifer over the last three years." And we don't have the ability to step in and defend you and say, "Well, that's going to take this board of education significant amount of time to comply with that." we have a legal obligation to comply with that just like anyone here would. And so I say that just to be thoughtful about what we're putting in writing and not to create too many records. So I want to talk a little bit about what the definition of a meeting is. And so obviously you are here as a tribe board meeting but when you meet as your respective boards this is the definition of a
037meeting under the law. So it's any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency and then this is also important and any communication by or to a quorum of a multimember public agency whether that's in person or by means of electronic equipment to discuss a matter over which you have jurisdiction or preview over. So, I'm going to circle back to that, but just as a a general reminder for our foyer requirements in our meetings, when we are hosting a meeting, let's say related to budget deliberations, if it is a regular or a special meeting of our board, that has to be posted 24 hours in advance because we have to give the uh public the ability to attend the public meeting. The agenda
038also has to be descriptive enough to apprise the public as to the business to be transacted. So we have to be thoughtful about that as well. So anything that you talk about with respect to the budgetary process regardless of what governmental um agency you are a member of is likely not going to be subject to executive session. It will likely have to be addressed in public session. I do think that this is a violation that many boards make without recognizing that that a budgetary discussion there is likely not an exception to discuss that in executive session. So again, by way of refresher, you likely know that there's very limited reasons to discuss something in executive session. So those reasons would be discussion concerning a personnel matter. Now, lots of times people will say, "Well, budgetary
039matters certainly concern personnel matters because if I want to make a decision that I have to, let's say, lay off five firefighters, that's personnel related." Well, certainly personnel related, but the personnel exception is specific to discussing the performance, the evaluation, the employment, the dismissal of an actual agent. it is not discussing whether or not we can afford to fund those three firefighter positions. And so again, I've seen people use that exception um illegally or running a foul of the law because they think, well, I am talking about positions. Those firefighters may know that it's their positions and I don't want to needlessly excite them, but again, you'd be talking about the petitions there, not the people. And that conversation with respect to the budget would have to be done in open session. Um some of
040the other ways by which you can talk about something in executive session would be a pending claim or litigation. Um also certainly with respect to any collective bargaining agreement. So if you're having any discussion about that that does not have to be posted. And then the rare occasion where I have been able to discuss budgetary matters would be if a board requested an attorney client communication from a lawyer. But again, we would have to be actually profering legal advice with respect to the budgetary decisions that you were going to make. And so again, it couldn't just be let's talk about which positions we're going to cut. We'd actually have to give you legal advice, whether it be with respect to a contract or a certain agreement as to how you could go about doing that.
041Um, so when I talk a little bit about the FOYA and the electronic communications, I also think it's important that when we're communicating, let's say, um, on the budget, it's not just meeting in person, but it also could be that if I'm, um, sending a communication to a quorum of the board or a subcommittee of the board because subcommittees are also subject to FOYA, it may constitute an illegal meeting. If we're talking about something of substance and there's a quorum going back and forth on something of substance, that's why you might see a unilateral communication very often either from the mayor's office or maybe the superintendent's office who are updating you on certain matters because you have the right to be apprised of things and you might get that catchall do not reply all where
042there's a legal reason why we do that because if you do reply all and it is a quorum or it is a member of a committee that will constitute an illegal meeting. And again, as I said, unless there's some very narrow exception, irregardless of whether you are communicating with a quorum or a committee, anything that you put into writing to each other will be subject to disclosure. Um, so I also thought that it would be helpful, there have been um a lot of questions in addition to electronic communications, let's say through email, about how we appropriately text one another. Um, and I know that this has come up a lot in other school districts. And so I thought that this might be a good scenario to work through where board of education members or city
043council members may be at a meeting and they are communicating with one another or appear to be communicating with one another um through text. So here's a scenario that I'll walk you through and I welcome any interactive feedback. So the nutmeg board has convened its February meeting. The main item on the agenda is the adoption of the board budget. The superintendent is presenting a PowerPoint reflecting fine-tuning she did on the budget following a budget workshop last week. Board Tommy texture is heard enough. Tommy texts board member Penny Pincher saying, "We told her in no uncertain terms that she was not to reduce the line item for high school sports. I cannot wait for her performance review." Penny Pincher responds, "That's for sure, and she still has those two new social worker positions in the budget.
044Where are her priorities? We should vote this BS down. The day after the board meeting, Ronnie reporter sends an email to the board chair. Just a heads up that I'm filing a complaint with the FOI commission about the board meeting last night. Two of your board members were having their own little private chat during a budget discussion. I guess it will take a foyer complaint to put an end to this. Oh, and please consider this email to be my foyer request for the text messages between Tommy and Penny during the meeting last night. So, a few things here. So, one, will Ronnie reporter um get the text messages that he's requesting if they exist? Well, so we would have to the onus would be on us to say that they either do or do not
045exist. And so, let's say if the communications I'm just going to use you and Jen for example again because you're right in front of me. If they said, "I want to see the text messages. I believe that Jen and um Shelby were texting at the meeting and I want to see them. You would have a legal obligation to search your phone. So, we can't hide behind the fact that it might be my personal phone or even my work phone. If I'm using it for board business, I would have a legal obligation to search those text messages. You would say to me, either no, I was texting my husband about my daughters or I was texting someone else about something that had nothing to do with the meeting. and then we could take the position, we
046don't have any records that are responsive to your request because you're asking for specific records from that meeting and nothing that transpired or appeared to transpire dealt with board business. Now, if they filed a FOYA complaint though, it might go beyond that and it might require that through an affidavit, you attest to the fact that you don't have any such text messages and that you weren't texting at that meeting about what this scenario talks about. And so, I say that and we remind you that you want to be thoughtful about certainly we all know you're probably going to have your phones in front of you at these meetings. you may need to, you know, uh, text for work or text for personal business, but there are people out there who are going to be watching
047that. And they may assume that you are, um, engaging in secret discussions about what is actually before you. And so, I just want you to be thoughtful about that. Now, here we actually know that they were texting about something in front of them. So, based on this example, they would have to hand these over. And again, I would have to say as your lawyer, I'd say, "I need you to search your text messages and I need you to provide this to me." Then we would hand it over. So now we've handed it over because Ronnie reporter is entitled to them under FOYA. But Ronnie is now filing a complaint to say that you engaged in illegal conduct by having that exchange. Is there any um justification for that? Why? So I love it that that's
048so a lot of people think that and a lot of people think because it's not a quorum I didn't do anything wrong and FOYA is not going to find a violation but we do have so this is a case from the town of Brookfield in 2014. Now this isn't specific to text messages but we draw an analogy from this Brookfield case. So this says obviously we know meetings of public agencies have to be held in public except for the executive sessions that we talked about. But the commission has ruled that there's secretive conduct by members of a public agency during a meeting which may include huddling in a corner or discussing agency business in a hush voice. That is no different from texting in the manner that we um demonstrated in the previous scenario. So
049that violated the foyer requirement because that discussion if they felt the need to say something like that which we would certainly caution you not to say that about your CEO. But if you felt the need to say that that has to be done in the open session otherwise you are conducting the business in secret. And so we believe that based on this Brookfield case, if this scenario were to happen, those text messages would not only be subject to disclosure, but they would deem your conduct, irregardless of whether or not it's between a quorum or even a committee, to be illegal or secretive conduct. Yeah, Jen, great question. So caucus communication. So by definition, a caucus is not a meeting under the law. So you're not subject to the same foyer requirements. But we have to
050be very mindful that let's say I have the Republican caucus. If I invite the Republican city chair to my caucus, I have waved the privilege of that caucus because the caucus only applies to the members of the specific agency. So, if the Democratic caucus, the Republican caucus of the city council invited a board of ed member of the same party, that would wave the privilege. If you invited me to a caucus, that would wave the privilege. Inviting the mayor, the superintendent, again, it would wave the privilege. Now, let me ask you this, though. What about records that I might share in a caucus? Can I take that same position that records shared in a caucus are not subject to disclosure because it attaches to the caucus privilege? That's exactly right. So, a lot of there
051are misconceptions out there that let's say I'm sharing my thoughts on the budget as you prepare the superintendent's presenting her budget and you share that in caucus. If that's a record that otherwise would be subject to disclosure, I can't hide behind the caucus privilege. And I've had a lot of um people have that misconception. Yeah, mayor. Sure. Yes. Yeah. Yeah. So there's a significant other step such that and I I just went through this with another um district and Tom and I were both involved in this. So it would likely and I spoke to this a little bit but I'm going to further expand upon it. If you said I don't have it, then I would need you to likely because Ronnie is going to file a complaint. It's going to go to the commission.
052The commission doesn't have the authority to dismiss cases. So, if Ronnie feels very strongly, I'm taking this to the commission, we don't have any way of getting it dismissed. We then have to go to the commission. You're now spending um significant time and resources and you're likely going to use a lawyer. So now I'm spending thousands of dollars to prep for this, go down to the commission. I likely in the beginning could just have you through an affidavit attest to the fact, but you would have to attest to an affidavit, right? And so we don't want to perjure ourselves. If I sign an affidavit, I'm attesting that I'm signing it under oath and it is true and I stand by that position. That may not be enough though for the commission [clears throat] or for
053Ronnie reporter. They do have the authority to subpoena witnesses. In the rare occasion, and I have not had this happen, and I don't know Tom, if you have, but I've read in other cases, in the rare occasion, if they really feel that you're not being truthful and there's evidence to support that, they could subpoena that phone or they could subpoena other records to demonstrate that you weren't being truthful. So, not only would that be incredibly um embarrassing and concerning, it obviously for those of you who are elected officials, it could certainly impact that, but it would also cost a lot of money and you're allocating precious resources that you don't have. We're talking about deficits to paying legal fees associated with that. So, that's a great question. Anyone else have any questions on that? Okay.
054Yeah, of course. Yeah. Yeah. >> Well, potentially and actually I'm going to talk about so let me you know what let me just jump ahead now to board conduct because let's say so let's let's take this example. So let's say if we knew that somehow through the commission process we found out that someone lied. So you all I imagine I know the board of education your deliberative process is all governed by Robert's rules. So the board of ed and then I'm going to talk about our city council. So because there's a distinction here. So the board of ed under Robert's rules can contemplate mean discipline with respect to board members conduct. So all the board member all the board of education is authorized to do would be potentially to censure a board of education member
055in this instance. They do not have the legal authority to remove a board of education member. But I'm going to circle back to the city council because they may have the right to do that under their charter. So, if this were a board of education member, if the conduct happened at a meeting, which it didn't, you could look to admonish or censure the person in the moment at the meeting. This, however, we know with our example, happens outside of a meeting, which would require certain due process for that board of education member before you could pursue a censure. So, what that would mean is the board would have to convene. The board by a majority vote would have to say, "We're going to have this conduct investigated." the investigation would happen. Then um there would
056be kind of a a mini trial in which the board would present the evidence um from the investigation. The board of education member would have a right to be heard and then again the most that you could do would be limited to censure or potentially the chair could remove them from chair responsibility assignments. Interestingly enough, this is typically the case for all governmental bodies, although Bristol has a charter provision that Tom and I were looking at, and not many cities have this. I think it's fair to say that this removal of city official authority which is governed by chapter 2 section 2-223 of your charter does not apply to board of education members because you have a dual status like Tom talked about as being a municipal and a state agent and because of that
057state agency um designation you legally could not authorize the removal of a board member. By contrast though, our city members do not have that dual status. And your you have a section 2-223 that talks about the city would have reasonable grounds if they believed an elected or appointed official was convicted of a felony, convicted of a lesser crime involving fraudulent or dishonest conduct. uh been found by a court or state agency to have engaged in that's unlawful workplace or to have found to violate the city charter or the code of ordinances including your code of ethics and then you have the right there is a process that you have to go through but through this process you would have the right to remove that official. Um the other thing to be thoughtful of is you
058typically have broad indemnification as a governmental official. However, in something like this, if we were able to demonstrate that you did act recklessly or with the intent to defraud, you could be responsible for your own legal fees and you would not be indemnified by that governmental agency. So again, not that I expect any of this to happen, but there are some significant consequences if we are not um living up to the standards that we set for ourselves or the expectations that we set for all of our members. Of course. Oh, absolutely. Because and I'm saying it could also lead to the removal because I think that you could definitely make the argument and I don't have the code of ethics in front of me, but that that would be a violation of your code of
059ethics. Um, and so one of the prongs is to have been found to have violated the city charter or the code of ordinances. So you rais an excellent point. So, I jumped ahead a little bit, but um if I can answer any questions just about what I talked about or if you want to have Tom come back up before we conclude just to address any of the other uh budgetary issues or any questions more generally, be more than happy to answer them. Sure. >> Yeah. Yep. Unless, of course, if you're texting your spouse or you're texting a child and it has nothing to do with board's business. But if it has something to do with board's business and it's substantive in nature, it will be subject to disclosure if requested. >> Sure. >> Question is
060very broad. Anything written if you keep notes for yourself. >> Oh, right. >> You don't share those notes with other people, then they're exempt from this. preliminary as soon as you share your notes with someone and even your handwritten notes and they could also later on be subject to a subpoena even if they are deemed your preliminary drafts or minutes. So just something to be thoughtful of. Right. So what I would do there is what's called an inc camera inspection. And so I would say I can prove that you were just texting your spouse. I would hand it over to the hearing officer because I would say the other side Ronnie reporter has no right to know what you were texting your wife, but I may have to hand it over to the hearing officer
061to prove our case. Which means just the hearing officer would review it and then he or she would make a determination as to whether or not we had to hand it over to the other side. >> Yeah. Right. Just just be careful and thoughtful about that. >> Yeah. So when you say pause, are you meaning that a quorum or a committee when I pause the meeting, we're going backstage to have a conversation? No, I mean it's you have the executive session privileges which are very narrow in scope. You have your caucus privilege and so you certainly could pause the meeting and go meet respectively as caucuses, but you could not meet as a quorum of the board to discuss something that otherwise needs to be discussed in public session if it doesn't meet a narrow
062executive session privilege. Yes. So great question. So whether or not I actually put executive session on the agenda is really has no bearing on whether or not I can go into executive session. Executive session is the status of a meeting. But what we would always advise is that I put the appropriate agenda item on the agenda that would warrant an executive session. And then I apprise the public that I'm likely going into an executive session. And then I would say proposed or anticipated executive session as a courtesy to the public that you're likely going to go into executive session. But let's say I forget to put executive session on the agenda, but the agenda item is discussion concerning um the you know the the town manager's contract just by way of example. Whether you put
063executive session on it or not will not be a procedural flaw. You can still go into executive session as long as you make the appropriate motion and twothirds of those members voting and present vote for you to go into executive session. >> Yeah. You can go to caucus with respect to your respective parties and so they're not part of the caucus. Yeah. Yeah. They're not part of the caucus. Any other questions? All right. Well, thank you all very much.