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CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED COMMUNICATION

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To:

Phil Hart, Board of Education Chairman

From: GaryR. Brochu,Shipman Goodwin & LLP Date: Februarv 2012 6Re: Legal Implicationsof Individual Board Member's Actions

You recently askedme for a legal opinion concerning the potential ramifications and legal exposurefor the Region One Board of Education (the "Board") as the result of recent actions by board member Gale Toensing. In the past two months, for example, the Board of Education has had a staff member file a grievancebecauseof the actions of Ms. Toensing, and has received a communication from an attorney representing one of the district's administrators the result of "harassment" Ms. as by Toensing. These eventsraise a number of legal issuesfor the Board of Education, both in terms of potentiallegai costsand exposureas well as basic governance pursuant issues to the Board's Bylaws and state statutes. This memorandum will briefly addresssome of the more significantof theseissues. Authority of Individual Board Members As an initial matter, it is useful to review and restatethe basic proposition that individual board membershave no authority to act on behalf of the Board outside of a board meeting unless the full board has voted to grant the board member such authority. SeeCGS $10-220. Board Bylaws explicitly adopt this view of the limited and circumscribed authority of individual board members, stating clearly that "[t]he Board of Education is the unit of authority. Apart from their function as part of the unit, board membershave no individual authority. " BOE Bylaw 9010. Individual members, via their actions or statements,not only are not acting on behalf of the full Board, but "a board member may not commit the district to any policy, act or expenditure." BOE Bylaw 9010. In a similar fashion, the Board's Code of Ethical Conduct requires that board membersrecognize the "chain of command" to resolve issues,problemsand complaints. BOE Bylaw 9271. Finally, Board membersare called on to confine their actions "to policy making, planning, and evaluation." BOE Bvlaw 9271.

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Both statelaw and Board Poiicy are clear in distinguishing the roie and responsibiliryof individual board membersas opposedto the Board as a whoie. Unfortunately, when individual membersdeviate from the codified policies and proceduresofthe Board, various legal issuescan arise. Interactions with School District Enryloyees As noted above, a district employeehas filed a grievanceallegingmultiple violations of the collective bargaining agreementthat she works under, basedon an that Ms. Toensingsent an e-mail "falsely accusingthe grievant and accusation reprimandingher" for an allegedfailure to respondto Ms. Toensing'se-mailsto the grievant. This employeeseeks,among other restitution, the costsof her medical care, as she was transported to the hospital following this ineident. It is useful to note that in one of her communicationswith this employee,Ms. Toensingwrote that "[a]s a member of the Region 1 Board of Educationand on behalf of all the tax paying public in Region 1 - which, our new chairman reminded us, we represent- I expect the staff and administration of Region 1 to respond to requestsand queries." Whether or not Ms. Toensing'sinterpretationof the relationshipbetweenan individual board member and district staff is understandable,it is contrary to Board policy. Again, as statedin the Board's bylaws, "[n]o individual member of the board, by virfue of holding office, shall exercise any administrative responsibilify with respect " to the schools,nor as an individual commandthe servicesof any school employee. BOE Bviaw 9010. Even though board members do not have any special authority outside of board meetings, as noted above, they do remain members of the Board and need to be the sensitiveto the perceptionby othersthat they are representing Board. The mere presenceor participation of a board member in any proceeding or other communication involving schooi personnel may be perceived as threatening or intimidating by school staff. A board member needsto avoid even the appearancethat staff should follow the directive of an individual board member as opposedto that of the school administration. Staff members are employed by the school system and no individual board member should make the claim that he/she is the employer or supervisor of school employees, nor make demandsof individual employees. It should be neither surprising nor unexpectedthat individuals may interpret the actionsof one board member as the will of the Board. Despite efforts to clarify via Board policy that the board member is not acting or speaking on behalf of the Board, employeesmay assumethat the statementsand actions of the individual board member made to and actions of the entire Board. What's more, statements are the statements even if the the parties or their counsel can later be used against the board of education, individual board member was not authorizedto speakfor the board. SeeHoek v.

CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED COMMUNICATION Board of Educationof the Citv of Asburv Park, 75 N.J. Super. I82 (1962), where the court relied upon an individual board member's statementsto an employee's attorney to establish bias and invalidatethe board's dismissalof the emolovee. Conflict of Interest A board member cannot avoid restrictions on intervening with the day to day or operationsof the schoolsby claiming to be acting on behalf of a constituent constituents "a private citizen" or "electedrepresentative." For example,courts as have concludedthat an individual board member who attends a hearing with the individualsor parties who are in oppositionto the board of educationcreates the potential for a conflict of interest, even if the board member claims that she is not acting in her capacity as a board member. In one case, the Eighth Circuit United States Court of Appeals presentedboard of educationmembers with the choice of either removing themselvesas plaintiffs in a desegregationlawsuit, or resigning from the board of education, noting the inherent conflict of interest createdby board members appearingin oppositionto the board of educationthat they serveon. SeeSchool District of KansasCitv, Missouri v. The Stateof Missouri , 592 F .2d 493 (1919). Similarly, board membersmust avoid any conduct that could be perceivedas a conflict of interest because"once it is establishedthat a public official has a conflict of interest, any official action taken is consideredtainted and must be invalidated." FriendsRetirementConceptsv. Board of Educationof the Borough of Somerville, 356 N.J. Super.203,211 (2002). Applying this rule, a New Jerseycourt found a conflict of intereston the part of two board memberswhen they participatedin a discussion they where a voiunteer organizationstoodto benefit from the board's decision,because or their family members were active members in the organization. This conflict was found to exist despite the fact that one of the two members refrained from voting on the issue and the spouseof the other member had resigned from the organization before the vote. As a result of this perceivedconflict, the court invalidatedthe board vote. Id. In many situations, the board of educationmay later be askedto sit as a hearing panel or make a board decision concerning an employee or parental complaint. Prior involvement of individual board members in the matter could compromisethe required neutrality of the board. "An impartial decision maker is a basic constituentof " minimum due process. Simardv. Board of Education of the Town of Groton, 473 F.2d 988, 993 (1973). In fact, courts have found it desirablethat board hearings"be of clothed not only with every element of fairness but with the very appearance completefairness." Id. The mere fact of the board member's prior involvementwith a matter can createa presumptionof bias. As one court has obseryed,"in a casesuchas this where the board member was directly and personally involved in the very issueon which the board was adjudicating, this Court can impute bias on that board member's part." Jonesv. The Board of Educationof the Indian River SchooiDistrict, 1994Del. of Super.LEXIS 45. Furthermore,the presence one board memberwith bias is

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of enoughto invalidatethe board's process,regardless whether the result was perceived can be justified by the facts. "One board member's fixed bias is sufficient to be fair or to causethe hearingprocessto deny due process,even though the hearingresult itself can be justified. " Crump v. Board of Educationof the Hickory Administrative School Unit,326 N.C. 603, 623 (1990). Board Liability The issueof board liability is a particularly seriousissuefor this Board, as a number of Ms. Toensing'sactions createthe risk of legal action againstthe Board. As an initial matter, it is important to understandthat the involvement of an individual board member in school personnel matters in the manner described in this the memorandumincreases risk of liability, both for the board and for Ms. Toensing herself. Indeed, in a caseinvolving a board member's involvement in a student hearing, this involvement was found to have createdprocedural irregularities that resulted in litigation, not against the individual member, but the board of education itself. SeeB.H. v SouthingtonBoard of Education,273 F.Supp 2d 194 (2003). Accordingly, the Board is advised that even unauthorized acts of an individual board member may invite litigation against the Board as a whole. Even if a board member professesto be acting independently and apart from the board of education, that representationwill likeiy be insufficient to forestall litigation, particularly from a party dissatisfied with an outcome, working conditions, or who possesses particular grievanceagainstthe district. Conversely, althoughConnecticut a law provides for the indemnificationof board of educationmembers,this indemnification is expressly dependenton the board member "acting in the dischargeof " his or her duties...or under the direction of suchboard of education. CGS $10-235. Thus, a board of educationmember, who claims to be acting as an individual citizen and not as a board member, may not be entitled to claim the protection of the indemnification provisions. To addressthe specific concernsbefore this Board, Ms. Toensinghas improperly involved herself in matters, or taken actions beyond the scope of her authority as a member of the Board, that give rise to credible concernsof legal in exposurefor the Board. The first of thesehas already been discussed this and is the subjectof an employeegrievance,where Ms. Toensing's memorandum communicationswith a district employee are alleged to have upset the employee such that she required medical care. The fact that such grievance may be denied does not justify Ms. Toensing's intrusion into matters that are beyond the scope of her authority as a board member, nor does it eliminate potential liability for the Board. An additional, and somewhat similar concern, arises from a communication from an attorney on behalf of a district administrator, referenced above, in which the by a attorneyreferences "campaign of harassment" Ms. Toensing and specifically

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" criticizesthe Board for being "unwilling or unableto reign in Ms. Toensing. Board membersneed not specuiate to whetherMs. Toensing'sactionscould lead to as litigation againstthe Board, as the administrator's attorney specifically referencesthe possibility of asserting her rights "under the law." In another instance, Ms. Toensing recently distributed documentsto the Board, including a letter from an attorney representinga district employee. Although this attorneyis not allegingthat Ms. Toensingherself has createdworkplaceproblems,Ms. Toensing'sinvolvementwith issuesconcerningindividual employees raisesyet another concern for the Board and the school district. In many instances,particularly with certified employees, Board may be called on to make decisionsconcerning the individual employees,for example a decision concerning compensationor even the employee'scontinuedemployment. As noted above,the prior involvementof Ms Toensing in specific employeematters createsan impression of bias making it virtually impossiblefor Ms. Toensingto participatein discussions and actionsconcerningthese matters. And should Ms. Toensinginsist on being involved in thesedecisions,she placesthe validity of the Board's decisionsat risk. Furthermore, even if Ms. Toensingdoesnot participatein Board deliberations concerningindividual employees,she still exposes district to litigation. Shouldthe the take action againstan individual employee,if Ms. district, through the Superintendent, Toensing has had inappropriate contact or involvement with that employee, the Board is exposedto litigation challenging the employment action basedon the Board's bias based on Ms. Toensing'sprior involvement. SeeHoek, above. Should litigation be filed againstthe Board basedon Ms. Toensing'sactions,as describedabove,the Board will be placed in a difficult and precariousposition. Given that Ms. Toensing's actions are beyond her authority as an individual board member and without the expressapproval of the Board, separatecounsel would likely be requiredto defendboth the Board and Ms. Toensing,as the legal interests the Board of and Ms. Toensingwould be, at leastin part, in opposition. Accordingly, the Board could very well find itself in a position where it could be required to assumethe cost defensecounsel. Moreover, it is also possiblethat the Board's for two separate the insurance carrier would declineto assume cost to defendMs. Toensingas she was not acting in her role as a member of the Board, thus forfeiting coverage. While any legal forecast is dependenton the eventual facts, Ms. Toensing's unauthorizedactions place the Board at considerablerisk for litigation and significant, and uninsured, costs to defend againstthat litigation. Conclusion Basedon the information availableto me, it is reasonablyclear that Ms. Toensing has acted in a manner that is beyond her expressauthority as a member of the

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Region One Board of Educationand that theseactionscreatea risk of unnecessary litisation and costsfor the Board.

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