First published by the New Haven Independent.
By not posting completed agendas on time and whispering to each other during meetings, a school board committee violated the state’s open meetings law, concludes a preliminary state open-government opinion.
Last week, a hearing officer for the Freedom of Information Commission concluded that the Board of Education’s Finance & Operations Committee ran afoul of state law at two meetings this winter.
The proposed final decision now heads to the full commission for a vote, where it’s expected to pass without objection.
Lisa Fein Siegel, a staff attorney who served as hearing officer, said that committee members should have taken a formal vote to amend the agenda for a January meeting and should not have whispered to each other at a February meeting.
The Independent filed the complaint earlier this year, amid questions about seeming conflicts of interest particularly in the way the board’s Finance Committee chose to award millions of dollars in contracts in no-bid deals.
In the months since, the school employees who staff committee meetings have worked hard to get detailed agendas posted early, while the board members themselves have refused to end their illegal side conversations.
According to the Freedom of Information Act, the final agenda for any regular meeting — even of a committee — must be posted a full 24 hours ahead of time. New business can still be added, if two-thirds of the members present vote to do so.
The addendum for the January meeting was posted a few hours before the meeting started. And the committee members, Frank Redente and Jamell Cotto, didn’t take a formal vote to waive the law’s notice requirements.
The contracts — for therapists from Integrated Wellness Group and Alive!, literary support services for New Haven Reads and a street outreach worker for New Haven Family Alliance — were all “essentially state funded items that we wanted to move to get programs going,” Will Clark, the district’s chief operating officer, said at the time.
At the hearing before the Freedom of Information Commission in late May, Clark further explained that the board’s committees work “informally.” They don’t take any official votes, instead just tabling items if there is any opposition. Clark argued that by simply taking up new business, the board had given a “clear indication” of their acceptance of the addendum.
Siegel disagreed. State law requires a formal vote that should have been recorded in the minutes, she wrote in her report.
At the next meeting, on Feb. 5, 2018, the Finance & Operations Committee got off to a rough start. The agenda had been posted an hour late, and Cotto said he wanted to table most of the items.
With mounting concerns about the coming year’s $19 million budget deficit, Cotto privately suggested that the committee table all items that weren’t grant-funded. He asked Redente and two staff members, including Clark, to step out into the hallway to discuss. For four minutes, out of public view, they talked about whether to go forward with the agenda. Darnell Goldson arrived late and joined in the conversation.
At the time, Cotto said he wasn’t trying to hide anything. “Everything was shared at the meeting,” he said. “We as a team, we have to go into a meeting knowing what we’re going to talk about. That’s just common sense.”
Goldson, the board’s newly elected president who’d pledged to make the board more transparent, then accused the Independent of “crying wolf,” “sensationalizing” and attempting to “raise a controversy that does not exist [as] a way to add ‘flavor’ to a story.” “I wish I could stretch a dollar like you stretched the truth here, I would be exceedingly rich,” he wrote in the comments section of an article about the issue.
Siegel concluded that, during the meeting in the hallway, board members limited themselves to questions about funding sources and didn’t discuss matters among themselves.
Siegel had a bigger problem with the board’s whispering during the meeting. Citing a 2014 precedent, she wrote that committee members violated the law by “discussing agency business inaudibly during the meeting.”
In her conclusion, Siegel noted that there had been turnover on the committee and that changes have been made since the appeal was filed. She concluded that it is unnecessary to impose any financial penalties or overturn any decisions. But she advised the Freedom of Information Commission to order the Board of Education to “strictly comply” with the law.
In recent months, school employees have made an effort to post agendas, which sometimes run hundreds of pages long with detailed information, before the deadline. Sometimes the agendas even come out a day or two ahead of time. Clark said that the district is looking into upgrading its website to make it easier for users to find and for staff to post these items.
The board members, too, have been more deliberate about taking votes to amend the agenda whenever they want to add new business.
While still keeping things “informal” without recorded votes, the committee members have also tried to clarify what they’re deciding, through there’s still often confusion. Last month, for instance, it sounded like the committee agreed with staff’s recommendation to rebid a contract for on-call fencing repair, after rates had shot up by 275 percent, but Cotto later told the New Haven Register that he’d actually passed the item along to the full board for approval.
In an email, Goldson said that the violations earlier this year were rookie mistakes by those who’d just joined the board.
“New board members made some common mistakes which have since been corrected,” he wrote. “This board has been considerably more transparent than any other past [Board of Education], and probably more than 90 percent of the other boards and commissions in the city.”
He noted that the board recently updated its bylaws. The new rules limit the use of private email, require disclosure of conflicts of interest, and create a three-member ethics panel.
But issues still persist for the Board of Education, particularly in their secretive deliberations.
The Independent is currently pursuing three additional appeals to the Freedom of Information Commission for holding an unnoticed special meeting, voting about board business over email, and calling a suspect executive session.
Goldson also wouldn’t commit to fixing some of the issues highlighted at the hearing this spring.
Asked if the committee members would start recording votes on each contract, Goldson said he’d have to discuss the legality with the commission. He argued that, under state law, decisions can be made only by the full board. Yet that’s a separate issue from whether board members should be held accountable for their advisory votes in committee.
Asked if he would do anything about the hushed conversations that happen almost every meeting — to the point where board members now routinely tilt their microphones down to not pick up the whispers — Goldson wouldn’t commit to any changes.
He argued that board members often weren’t talking about official business. In his experience, he explained, he often whispered requests to other board members, like asking them to keep time on public commenters or pass him a copy of the agenda. Or, he added, he may have been discussing something “of a personal nature” at the public meeting.