Psst! Did Ed Board Flunk FOI Class?

FOI Training - 1
Jamell Cotto and Tamiko Jackson-McArthur at FOI refresher.

First published in the New Haven Independent.

The Board of Education may have violated the Connecticut Freedom of Information Act —  right in the middle of a workshop on how to follow that law.

After two proven violations of the state’s open meetings law this year, the board arranged for a training last week at 54 Meadow St. on how to better carry out its duty to do the public’s business in public.

The session, led this past Monday by Thomas Hennick, the public education officer at the Connecticut Freedom of Information Commission, touched on what staff should put in agendas and minutes, which citizens are allowed to comment or film during meetings, and when board members should take a sensitive discussion behind closed doors.

Hennick said that an open-government law was one of the central planks of Ella T. Grasso’s gubernatorial run in 1974, right as the country’s faith in government had been shaken by the Watergate scandal. The year she took office, she signed the Connecticut Freedom of Information Act, guaranteeing access to meetings and records.

“A lot of times people will say to me, ‘Hey, we don’t understand this. We are volunteers; we have other jobs.’ Sometimes, when you’re involved in a situation like this, it’s almost like a second full-time job. You didn’t sign up for the FOI part. You wanted to help your community; you wanted to be a good citizen,” said Hennick. “I get it. But that doesn’t excuse you from knowing freedom of information and working with it. It’s the law, and it governs how you conduct your business.”

Fewer than half of the board’s members showed up for the presentation. As Hennick spoke, the three present — Jamell Cotto, Tamiko Jackson-McArthur and Ed Joyner — whispered among themselves and shared text messages that popped up on their cell phones.

At one point, while the board members muttered to each other, Kathleen Foster, the city’s assistant corporation counsel who handles public-records requests, asked Hennick if sidebar conversations are illegal.

“Don’t do it,” Hennick said, as the board continued to do it.

“Do I have to talk into the mic and say, ‘Pass me the water?’” Cotto asked.

“We don’t want to be naive,” Hennick said.

He gave examples of the type of comments that would violate the Connecticut Freedom of Information Act, if whispered: “Can you believe this speaker?” “That’s the dumbest thing I’ve ever heard.” “How are you going to vote?”

“You want to be careful about how you communicate with each other at a meeting,” he explained. “You want to be careful to avoid even having what could look like a conversation that the public should have a right to hear.”

Ed Joyner and FOI’s Thomas Hennick.

In January, the Finance & Operations Committee’s two co-chairs whispered to each other during a school staffer’s presentation. After a hearing, the Freedom of Information Commission determined that whispering during the meeting violated the law’s requirement that all meetings be open to the public.

Lisa Siegel, a staff attorney at the commission who adjudicated that case, said that a sidebar conversation would be illegal if it the speakers were discussing board business in an inaudible tone.“That’s hard to independently verify,” she pointed out this week, “but that’s the law.”

After the meeting, Jackson-McArthur, who’d arrived late, said that she turned to her fellow board members, because she’d been unable to keep track of the discussion. She asked Cotto and Joyner several times if there was a cheat sheet that she was missing.

“I kept asking if there were any kind of documents. I was looking for some bullet points: ‘These are no-go’s, these are things you can do,’” she said. “I was asking what’s going on.”

At one point, Cotto and Jackson-McArthur had exchanged cell phones. She pulled up the text exchange with her daughter for a reporter to prove they hadn’t been talking about board business.

Even if the board members had an excuse, didn’t the optics look bad? Were the whispered matters that urgent? Especially during a training that was put together because they’d broken the law by whispering to each other in the past?

“We’re in a society now where everyone is so suspicious of everybody. Sometimes it might be, ‘Hey, can I have a mint? My breath stinks,’” Jackson-McArthur said. “I absolutely don’t believe in doing anything underhanded.”

Hennick will return to New Haven in mid-October for another presentation about the Freedom of Information Act’s open-records provisions, which allow anyone to examine or copy documents retained by the school system, as long as they don’t fall into a special category.

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