Hearing Set June 25—

School Bd Vice Chair

Files FOI Complaint

By John Voket

On Friday, June 25, at 11 am, the Connecticut Freedom of Information Commission has scheduled a hearing regarding an appeal filed against Newtown Board of Education by school board Vice Chair Kathryn Fetchick.

In the complaint, obtained this week by The Bee, Ms Fetchick stated that the board and in her capacity as its chair, Lillian Bittman, permitted part of a closed executive session to transpire during which an evaluation and criticism of Ms Fetchick’s performance and actions as a board member were the sole matter of business.

In the appeal of the meeting, Ms Fetchick points out that the FOI statute permits closed meetings to be held to evaluate the performance of “a public officer or employee,” but not if that individual requests the discussion to be held at an open meeting. Once that request is made, an open meeting is required.

Ms Fetchick contends in the appeal that a few days ahead of her board’s April 6, 2010, regular meeting, an agenda was issued with two items listed for possible executive session: “personnel” and “negotiations.” Then, on April 5, Ms Fetchick received an amended agenda that added “board self-evaluation” to the executive session business.

A copy of that agenda reflected that no further explanation or justification was included for any of the closed session matters. On the night of the meeting, Ms Fetchick indicated that discussions regarding both personnel and contract negotiations occurred, but upon conclusion of those matters fellow board members Richard Gains and David Nanavaty launched into a “critical evaluation of” Ms Fetchick’s performance on the board.

Just a few minutes earlier, during the personnel-related discussion, Ms Fetchick said she specifically asked if the person being discussed had been notified and given the opportunity to have that discussion occur in public. Ms Fetchick further stated that Superintendent of Schools Janet Robinson had reminded the board several times previously that such an option was required to be offered any time a personnel matter was slated for board discussion.

The appeal states that according to Ms Bittman, Mr Nanavaty was the individual who requested the evaluation be added to the executive session, and that despite repeated objections, Ms Fetchick contends her chairman never intervened. The appeal further states that no other board member besides Mr Nanavaty and Mr Gains contributed negative comments about Ms Fetchick’s performance, and that neither the entire board nor any other board member was subject to any discussion or evaluation.

As a result, Ms Fetchick believes the inclusion of “board self-evaluation” as a reason for executive session was misleading, and that under the statute, it was required that Ms Fetchick be given the opportunity to have any targeted criticism of her performance be conducted in public if she so desired.

Ms Fetchick contends that another part of the statute may have been violated. The appeal states that Dr Robinson was permitted to remain in the closed session after she provided input on the personnel and negotiation matters, even though she had no business regarding, and did not participate in, the criticism of Ms Fetchick’s performance.

The appeal also calls into question the lack of detail she believes is required to appear on both proposed agendas to more transparently qualify the need for the so-called “personnel” and “negotiation” discussion to be held in secret.

If the appeal is found to have merit by the FOIC, Ms Fetchick is requesting the commission compel Ms Bittman, Mr Nanavaty, and Mr Gains issue a written and verbal apology acknowledging they understand their conduct was in violation of the FOI statutes. She further asks that those individuals be required to attend a refresher training by the commission on administering executive sessions, “to help ensure our board is not placed in this position again.”

On May 5, a notice was dispatched regarding the matter to the local Board of Education offices. Contacted this week, Ms Bittman said she was aware of the complaint, but had not received formal notice she was required to attend the June 25 hearing.

Ms Bittman also said she planned to discuss the complaint with her board during a future retreat.

This is the second time in recent years that the school board has faced an appeal to the state FOIC — coincidentally concerning matters that were very similar.

In a final ruling issued in October 2006, the FOIC ruled that then Newtown school board chairman Elaine McClure was entitled to the same executive session protections afforded to any public official or employee whose performance might be evaluated or discussed by an elected board or local government official.

Specifically, the FOIC’s previous ruling stated: “that the respondent’s discussion during the executive session...was a discussion concerning the performance and evaluation of a public officer within the meaning of §1-200(A), G.S.” That ruling may serve as a precedent to prove Ms Fetchick was entitled to have any evaluation of her performance be held in public if she requested it.

The FOIC in that 2006 case ruled: “This commission has repeatedly stated that in order for the public to be adequately apprised of the reason for an executive session, the public agency must give some indication of the specific topic to be addressed, prior to convening such session.  Therefore, descriptions such as ‘personnel,’ ‘legal,’ or ‘the appointment, employment, performance, evaluation, health, dismissal of a public officer or employee,’ are inadequate and do not state the reason, within the meaning of §1-225(f), G.S.

“It was found that the respondent board failed to state the reason for the executive session held on December 20, 2005... within the meaning of §1-225(f), G.S., and therefore violated such provision. As a result, the local school board was ordered to strictly comply with the provision of §1-225(f), G.S.”

If it is determined that she was the only board member facing criticism by her colleagues, Ms Fetchick said her review of the 2006 FOIC ruling appears to validate that in her capacity, and in the circumstance that presented itself, she was entitled by law to have the opportunity to hear her critics and evaluation in public, but was denied that opportunity by her board and chairman.

Ms Fetchick said she expects the issue of the Newtown school board’s continuing failure to comply with the 2006 FOIC ruling will be an issue in the current hearing as well.

In a subsequent follow-up response for comment, Ms Fetchick said, “As a member of the Board of Education, I have always taken my position very seriously. I was elected to the Board of Education to represent my constituents. 

“As a board member, I feel it is important to be respectful, to listen carefully, and to be able to communicate freely with the public. Policies and laws are in place to aid and guide us in carrying out our duties.”

Ms Fetchick concluded, saying, “In this case, I feel there was no respect shown to me as a fellow board member and that my rights as an official were violated.”