In Connecticut, employees who engage in public sector collective bargaining with a board of education employer, fall into two categories: (1) those covered by the Teacher Negotiation Act (“TNA”), i.e., teachers and administrators; and (2) those covered by the Municipal Employee Relations Act (“MERA”), i.e., all other bargaining units. Both the TNA and the MERA collective bargaining laws culminate in last best offer (“LBO”) final and binding arbitration. One distinction that existed prior to the Supreme Court’s recent case, Gould v. Freedom of Information Commission (SC 18966) (released December 16, 2014), was the perception that TNA arbitration panels were required to conduct bifurcated hearings. In Glastonbury Education Association v. FOIC, 234 Conn. 704 (1995), the Supreme Court determined that the presentation of last best offers could take place in closed session because it constituted “strategy or negotiations with respect to collective bargaining,” therefore, it did not fall within the definition of “meeting” set forth in Connecticut General Statutes §1-200(2). Whether the evidentiary portion of the arbitration hearing was similarly beyond the dictates of the FOIA has been an open question for the past decade. The Gould decision has now answered that question – the entire arbitration hearing can take place in closed session.
Gould v. FOIC arose out of an interest arbitration case involving the Torrington Board of Education and the Torrington Education Association. The panel of three arbitrators made up of Larry Foy, Victor Schoen, and Martin Gould convened the arbitration hearing on January 30, 2010. The panel, treating their assembly as a meeting, adjourned to what it designated to be an executive session, closed to the public. Apparently mindful of the Supreme Court’s 1995 decision in the Glastonbury Education Association case, a Waterbury Republican reporter challenged the panel’s decision to conduct the evidentiary portion of the arbitration proceeding in private. After a careful and thoughtful analysis of the law (but not without multiple dissents), the Supreme Court determined that the entire arbitration proceeding could take place in private because the arbitration panel was not a public agency, as defined in Connecticut General Statutes §1-200(1). Since the dictates of the FOIA only apply to public agencies, the requirements of the FOIA were inapplicable.
How Does This Case Effect You ?
The entire collective bargaining process between teacher or administrator groups and boards of education may now take place in private. Negotiation, mediation, and the exchange of last best offers have been regarded as being within the “strategy or negotiations” exception to the FOIA for some time. With the recent Gould v. FOIC decision, the evidentiary portion of the last best offer arbitration hearing, indeed, the entire hearing, is outside the scope of the open meeting law requirements. In keeping with the underlying legislative intent, the parties are now clearly permitted to present their cases in LBO arbitration, without the added distraction of considering how it all may appear on the local cable channel.
Collective bargaining under MERA has been operating in private, but for a different reason. Like the TNA, negotiation and mediation are considered “strategy or negotiations,” thus, those gatherings are not “meetings.” However, the LBO arbitration panels assembled under MERA have not been subject to the open meeting requirements of the FOIA because Connecticut General Statutes §31-100 requires the State Board of Mediation and Arbitration, the agency that oversees these interest arbitration proceedings, to “hold confidential all information submitted to it by any party to a labor dispute.” See also State Board of Labor Relations v. FOIC, 244 Conn. 487 (1998).
As an aside, public evidentiary hearings are still required of boards of education when, for example, they conduct a grievance hearing, even though a grievance arbitration may take place in private. Typically, public sector grievance procedures involve multiple steps, including a hearing before the agency/employer, which step precedes advancement to an optional arbitration stage. Reading Glastonbury Education Association together with Waterbury Teachers Association v. FOIC, 240 Conn. 835 (1997), it would appear that boards of education (or committees of such boards), that convene to hear a grievance must comply with the open meeting requirements of the FOIA, at least with regard to the evidentiary portion of the grievance hearing. Whether deliberation by the board after it has heard the evidence is also outside the scope of the open meeting dictates of the FOIA, may depend upon the circumstances. Compare Waterbury Teachers Association v. FOIC, supra, (deliberations viewed to be “strategy or negotiations with respect to collective bargaining”) with O’Riley v. Chairman, Board of Education, Regional School District No. 1, # FIC 2010-766 (July 13, 2011). Finally, the board may be entitled to enter into executive session for the deliberation phase of a grievance hearing, if its discussion concerns an executive session eligible matter under the FOIA. Discussion of an employee’s employment or performance (subject to the grieving employee’s right to require that such discussion take place in public), is one such example. See C.G.S. §1-200(6)(A).