FREEDOM OF INFORMATION COMMISSION
the Matter of a Request
Advisory Opinion #43
David J. Wenc,
On October 8, 1980, the Commission considered and agreed to respond to the request for an advisory opinion filed by David J. Wenc, a member of the Windsor Locks Board of Finance. In essence, the applicant seeks the Commission's opinion to a two‑part question:
1) whether, under the Freedom of Information Act (herein after referred to as the "FOIA"), a town board of finance can properly meet in executive session with a town board of education to "discuss the status of contract negotiations between the board of education and the teachers' union;" and
The answers to these questions are not simple. They require a complex response because of the myriad of statutes involved. Therefore, before the Commission addresses the applicant's inquiry directly, it will set forth its understanding of the statutory relationship between the collective bargaining process for school district personnel and the appropriations process for town governments generally. Since the applicant's request concerns local boards of finance and education only, this opinion will refer to these agencies, although the analysis would apply to other municipal appropriation‑making authorities where established by law.
The law in Connecticut is that local boards of education are subject to local control only as to budgetary matters. Murphy v. Berlin Bd. of Ed., 167 Conn. 368, 372 (1974). In all other matters such boards "serve as agents of the state in their communities." Id. Thus, boards of education have been given the duty to negotiate the salaries and other conditions of employment for school district personnel and to enter into contracts concerning same. See Conn. Gen. Stat. § 10-153d(b). Because boards of education are subject to municipal appropriations, but are otherwise independent of local fiscal restraints; Conn. Gen. Stat. § 10-222; the General Assembly has created an integrated time track for school personnel collective bargaining and the annual municipal budget process. Likewise, the legislature has provided for coordination and communication between boards of finance and education with respect to such collective bargaining.
In describing this integrated
statutory scheme, the touchstone event is the annual town meeting. At this meeting, the board of finance
submits for final action its budget estimates and recommendations. Conn. Gen. Stat. § 7-344, as amended by P.A.
79-101 and P.A. 80-483, § 177. Although
subsequent appropriations may be made, municipal appropriations are generally
fixed at the annual town meeting. See
Conn. Gen. Stat.
§§ 7-344, as amended, and 7-348, as amended by P.A. 80-106.
State statutes prescribe certain actions by boards of finance and education in advance of the town meeting. At least two weeks before such meeting, boards of finance are mandated to hold a public hearing on preliminary budget estimates. Conn. Gen. Stat. § 7-344, as amended. Thereafter, these boards are required to consider the estimates and to make their recommendations at a public meeting, Id.
As part of this process, a board
of education must submit estimates of the cost of maintaining the public
schools to the town's board of finance not later than two months preceding the
annual meeting. Conn. Gen. Stat. § 10-222. In the same vein, a board of education, as a
requesting agency, must report to the board of finance such information as the
latter board requires for its purposes under § 7-344, as amended. Conn. Gen. Stat.
§ 7-345. Likewise, § 7-345 provides that boards of finance shall have access to the books and reports of any requesting agency, including, presumably, those of boards of education.
Conn. Gen. Stat. §10‑153d (b) states that collective bargaining with a board of education shall begin not less than 180 days before the date by which that agency must submit its proposed budget ‑ i.e., two months preceding the annual meeting. Also, under the same statute, any signed collective bargaining contract must be filed with the town clerk and the Commissioner of Education. The terms of the contract are binding on the legislative body of the school district, unless it rejects the contract at a regular or special meeting within 30 days of the filing of the contract. Town residents may petition to reject the contract pursuant to the procedures set forth in Conn. Gen. Stat. § 7‑7. Furthermore, under §10‑153d(b), the body charged with making annual appropriations in a school district (in this case, a town board of finance) must appropriate to the board of education the funds necessary to implement the terms of any such contract not rejected. If a contract is rejected, however, the parties are to renegotiate another collective bargaining agreement. Id.
But even before collective bargaining begins, contact between the boards of finance and education must be established. This contact is, in essence, required to be maintained throughout negotiations. Thus, each board of education is required to "meet and confer" with the town's board of finance within 30 days prior to the date on which collective bargaining begins. Conn. Gen. Stat. § 10-153d(a). In addition, that statute provides that a member of the board of finance shall be permitted to be present during such negotiations. In a sense, the board of finance liaison is a conduit, keeping his or her boar apprised of the status of negotiations, while offering fiscal information requested by the board of education during the negotiations.
The general rule under the Freedom of Information Act is public disclosure. Woodstock Academy v. Freedom of Information Commission, 42 Conn. L.J. No. 4, at 1,3 (Sup.Ct. July 22, 1980). Exceptions to that rule should be construed strictly and should not be extended beyond their evident intent. Willoughby v. New Haven, 123 Conn. 446, 454 (1937). See also, Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507 (1975). Conn. Gen. Stat. § 1‑18a(e) permits agencies to exclude the public during executive sessions. Such sessions are therefore an exception to the rule of public access to agency meetings, as provided in Conn. Gen. Stat. § 1‑21. Consequently, an agency may properly convene in executive session only when the subject of such session falls squarely within the precisely defined terms of one or more of the exclusive purposes set forth in § 1‑18a(e).
Conn. Gen. Stat. § 1‑18a(e) does not specifically mention collective bargaining as a purpose for an executive session. Thus, it is the Commission's opinion based upon the foregoing rules of statutory construction, that a public agency may not convene in executive session merely to discuss or act upon collective bargaining issues. However, Conn. Gen. Stat. § 1-18a(e)(5), permits executive sessions at meetings where there is discussion that would result in the disclosure of public records or information exempt under Conn. Gen. Stat. § 1-19(b). Section 1-19(b)(9), in turn, permits agencies to withhold from disclosure "records, reports and statements of strategy or negotiations with respect to collective bargaining...." (Emphasis added). As a result, it is permissible for a public agency to convene in executive session for that part of a discussion that would reveal the contents or records, reports and statements concerning collective bargaining strategy or negotiations. During an agency meeting, no other portion of a discussion about collective bargaining may be held properly in executive session.
In reality then, it may prove impractical for an agency to predict when its discussion would disclose the exempt records described in Conn. Gen. Stat. § 1-19(b)(9). This is due in large measure to the curious position within the Freedom of Information Act that the legislature established for the collective bargaining matters that it deemed advisable to keep from public scrutiny. Instead of treating these matters as subjects for executive session, the General Assembly opted to exclude them from the definition of "meeting" in Conn. Gen. Stat. § 1-18a(b). In fact, these are the only substantive topics so excluded from that definition.
Conn. Gen. Stat. § 1‑18a(b) states that a meeting "shall not include strategy or negotiations with respect to collective bargaining...." In terms of the applicability of the FOIA, this means that whenever an agency meets for the purposes of collective bargaining strategy or negotiations, it is not subject to the open meetings requirements of the FOIA contained primarily in Conn. Gen. Stat. § 1-21. Thus, for example, an agency would not have to provide public notice that it was even going to meet. It is the Commission's opinion that in particular, this exception to the rule disclosure must be construed strictly because of its potential for abuse.
In light of the foregoing statutes and policies, it is the Commission's opinion that the specific answer to the applicant's first inquiry is no. A town board of finance cannot properly meet in executive session with a town board of education merely to discuss the status of the latter board's contract negotiations with a teachers' union. In this context, such agencies may convene in executive session, singly or together, only when their discussion would result in the disclosure of the contents of "records, reports and statements of strategy or negotiations with respect to collective bargaining.” No other collective bargaining matter or presentation is a proper purpose for an executive session. Thus, in a sense, the preceding sentence is also the Commission's response to the applicant’s second inquiry.
The Commission, however, believes that further guidance should be given to boards of finance and education in this area. It is clear from the statutory scheme described in Section I, above, that boards of education have the responsibility for collective bargaining with school district personnel representatives. It is also clear from the current language of Conn. Gen. Stat. § 1‑18a(b) that strategy or negotiations by such boards may be determined and undertaken without complying with the open meetings requirements of the FOIA. It is the Commission's opinion that this exclusion from the rule of public disclosure likewise covers the communications concerning such strategy or negotiations between boards of finance and education, and between boards of finance and their Conn. Gen. Stat. § 10-153d(a) liaison members. Any other interpretation might well defeat the legislative purpose now embodied in § 1‑18a(b), when applied to the aforesaid statutory relationship between boards of finance and education.
Although the Commission concludes that boards of finance and education may meet, separately or together, without reference to the provisions of the FOIA for the limited purposes outlined above, the Commission hopes that these agencies nevertheless would comply with the act's procedures whenever possible. In this way, the Commission believes that boards of finance and education not only would be adhering to the spirit of the FOIA, but would be helping to implement a consistent public information policy.
Furthermore, the Commission cautions that it will not sanction non-compliance with the open meetings portions of the FOIA, except in the highly restricted circumstances where matters solely of strategy or negotiations with respect to collective bargaining are discussed or undertaken. The Commission fully expects to enforce strictly all of the public rights under the FOIA. Thus, the Commission strongly advises these bodies to consider the significant consequences and risks, including having important actions negated, if they cross the line between a permissible strategy or negotiation meeting and a meeting that is held illegally under the FOIA.
By Order of the Freedom of
Judith A. Lahey, Chairman of
of the Freedom of Information
Clerk of the Commission