Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

Have you ever received a complaint that you were unfairly charging a member of the public for copying documents under the Freedom of Information Act (FOIA) because you charged separately for copying each side of a double-sided piece of paper?  The Court of Appeals now says this practice is perfectly legitimate, since the dictionary definition of a "page" means one side of a piece of paper.  In Williams v. Freedom of Information Commission, 108 Conn.App. 471 (2008), the plaintiff complained about being charged separately for copying each side of a double-sided piece of paper, claiming that this practice violated Section 1-212(e) and the definition of a "page".  While acknowledging that depending on the context, the term "page" can sometimes mean one side of a piece of paper and other times refers to a double-sided sheet of paper, the court found that the legislature in the State of Connecticut generally defines a "page" as one side of a piece of paper.  Furthermore, although the general purpose of FOIA is to provide reasonably easy access to public records at a relatively low cost, the legislature has acknowledged that there is a cost to public agencies associated with complying with the Act, and has shifted part of that cost to the person requesting copies of the public records.  To the extent that some people find the cost of copies prohibitively expensive, the Act provides that the usual fee may be waived in some instances.

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The passage of PA 08-160 which repeals C.G.S. 10-222d, the state’s existing bullying statute effective July 1, 2008, and adds new requirements and changes the definition of bullying seemingly has gone unnoticed. The lack of attention may be because this Act also addresses controversial changes to in school suspension laws which have garnered much attention. Notwithstanding the lack of notice, PA 08-160 makes significant changes to the existing bullying laws and places new requirements on school districts to implement and revise their bullying policies.

Pursuant to PA 08-160, the definition of “bullying” has been expanded to include “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” This definitional change eliminates the requirement that the overt acts be committed repeatedly against the same student over time. Presumably, the previous requirement that the acts be committed against the same student over time, prevented schools under their bullying policies from disciplining a student who engaged in pervasive, generalized bullying, but did not engage in specific bullying of one individual student over time.

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With the close of the 2008 legislative session, HB 5826 An Act Concerning School Learning Environment has passed. The bill postpones from July 1, 2008 to July 1, 2009 the effective implementation date for PA 07-66 which generally prohibits out of school suspensions and extends from five to ten days, the maximum length of in-school suspensions. The passage of PA 07-66 raised a number of concerns for school boards and school administrators regarding the pragmatics of implementing the new law. Those concerns included questions over the potential additional costs for implementation, staffing issues and space issues, as well as questions about how under the new law, administrators are to discern what student behaviors are seriously disruptive enough to warrant on out-of-school suspension.

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Two Historic Law Firms Join Forces to Become Pre-eminent Connecticut Firm

Two of the oldest law firms in Connecticut have joined forces in a move that will create one of the most comprehensive legal services businesses in the state. Berchem, Moses & Devlin, P.C. and Wake, See, Dimes, Bryniczka & Bloom (of Westport, Conn.) have combined their practices, as of March 1, 2008, resulting in a staff of nearly 30 attorneys covering 14 different law specialties. The new firm will operate under the name of Berchem, Moses & Devlin, P.C., and will maintain existing offices at 75 Broad Street in Milford and 27 Imperial Avenue in Westport.

Areas of practice at Berchem, Moses & Devlin include education law, business and commercial law, labor and employment, civil litigation, land use, estate planning, and real estate law. The newly combined firm will have a particular strength in education and municipal law.

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Today's bills filed in the General Assembly include Raised Bill 5833, a proposed amendment to Connecticut General Statutes Section 53a-119, which would add as a felony criminal charge "obtaining school accommodations by misrepresenting a child's residence".  This would be defined as a parent, guardian or person acting on behalf of such person (or student if over the age of 18), intentionally misrepresenting the town of residence of the child, with the intent to obtain school accommodations from a school district other than the one in which the child resides.

Although other sections of the criminal code relating to theft of public goods have been cited in connection with the arrest of parents in connection with this type of offense, this would make it clear that such conduct is a criminal offense without having to rely on an interpretation of another more general section of the criminal code.  This bill has been referred to the Judiciary Committee.

For other new bills filed, read on...

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If the last few days are any indication, it promises to be a busy season for the General Assembly, particularly at the Committee on Education.  Multiple bills have been raised in both the Senate and the House pertaining to education of school-age children, and most of these have been referred to the Education committee. While by no means an exhaustive list, here are a few of the more interesting bills submitted to the committee or raised by the committee so far this session:

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The Connecticut State Board of Labor Relations recently issued a decision, Region 16 Board of Education, Decision No. 4270 (2007), in which it held that a unilateral change in the workload of Special Education Teachers constituted a prohibited practice. In doing so, the Board created an exception to the general rule that a unit wide fixed practice must be demonstrated in order for a union to establish a unilateral change based upon prior practice. 

Generally, it is an unfair labor practice for an employer to change a term or condition of employment in the face of a unit wide fixed past practice. Accordingly, where there has been a mixed practice, unions have been hard pressed to prove a violation. 

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On December 19, 2007, I wrote about Dr. Charles Ray Jones being reprimanded by the Connecticut Medical Examining Board on December 18th.  As promised, the Memorandum of Decision is attached. 

As previously reported, Dr. Charles Ray Jones' license to practice as a physician and surgeon in the State of Connecticut has been placed on probation for two years and he is required to pay $10,000 as a civil penalty.

Please contact me if you have any questions.

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A familiar name to Connecticut educators, Dr. Charles Ray Jones, appears in the national news today after having been reprimanded by the Connecticut Medical Examining Board on December 18th.  According to reports by the Associated Press, the Board voted unanimously to impose sanctions on Dr. Jones after determining that he had violated the applicable standard of care in treating siblings from Nevada by prescribing antibiotics for Lyme Disease without having examined the children, based only on reports given over the telephone by the mother.  The Connecticut Department of Public Health website, updated December 19, 2007, confirms that Dr. Jones was issued a reprimand, his license placed on probation for 2 years, and he was issued a civil penalty in the amount of $10,000.00.

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In a recent decision issued by the Connecticut Supreme Court, the doctrine of sovereign immunity was held to protect a school district from liability from suit as a result of an injury sustained by a parent picking up a six year old child from an after school program sponsored by the Hartford Board of Education. Durrant v. Board of Educ. of Hartford, 284 Conn. 91 (2007).  Reasoning that the child's attendance at the after-school program was voluntary rather than mandatory, the presence of the parent on school grounds to pick up that child from the program and escort him home was likewise voluntary rather than mandatory.  Therefore, although the parent was injured when she slipped in a puddle of water in a stairwell, the doctrine of soveriegn immunity protected the school district and its agents from liability for the injury.  The court rejected the argument that because the creation of the after-school program was authorized by statute, this indicated an intention on the part of the legislature to abrogate the doctrine of sovereign immunity and allow school districts to be held liable for these types of injuries.  The court also noted that the mere fact that the school district maintained insurance coverage for personal injury claims was not an indication that sovereign immunity should be abrogated, since school districts are expected to maintain insurance coverage for other reasons.  Will decisions like this discourage insurance carriers from raising premiums on coverage for school districts in Connecticut this year?

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In its Regular Session, the Legislature made several changes to the laws regarding suspension and expulsion of students in Connecticut schools.  Some of these changes went into effect on July 1, 2007, while others will not go into effect until July 1, 2008.  Knowing which is which is important, since these changes will impact the type of disciplinary action that may be taken in the case of a disciplinary infraction during the 2007-2008 school year.

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Public Act 07-3, Section 49, passed during the June Special Session of the Legislature, now requires that the notice of an expulsion hearing include information about free and reduced cost legal services available locally and how to access these services.  This requirement took effect on July 1, 2007.  If you are still using last year's expulsion hearing notice form, make sure to update your notice form to include this newly required information.

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With seemingly little notice or fan-fare, the General Assembly modified a number of education statutes regarding student discipline including the statute providing for the out of school suspension of students.  PA 07-66, effective July 1, 2008, generally prohibits out-of-school suspensions, and extends from five to 10 days, the maximum length of in-school suspensions. Current law defines suspension as exclusion from school privileges, or from transportation services only, for up to 10 consecutive school days. Under former law, in school suspensions were limited to five school days in length. While extending the time period for in school suspensions from five (5) days to ten (10) school days, the new law essentially requires suspensions to be in-school suspension unless the school administration determines through an informal suspension hearing that (a) the student poses such a danger to person or property, or (b) is so disruptive of the education process, that he or she must receive an out of school suspension. Under former law and according to most board polices, administrators have the discretion to suspend a student, in or out of school, for behavior that either violates a board policy, poses a danger to self or others or is seriously disruptive of the educational process. To suspend a student for off campus misconduct a student’s behavior must both violate a board policy and be disruptive of the educational process.  Unfortunately, the new law fails to define what student behavior “poses such a danger to person or property” or “is so disruptive of the educational process” that it warrants an out of school suspension and leaves administrators with little guidance on how to determine whether a student’s behavior has risen to a level of severity warranting an out of school suspension. PA 07-66, effective July 1, 2008.

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In at least partial response to an incident in which a pedestrian was struck and killed by a school bus driver who had cocaine in his system, a law has been passed which now requires background checks and random drug testing of school bus drivers. While bus drivers employed by school districts are already subject to background checks, the law imposes a similar requirement on bus drivers employed by outside bus services. 

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The principal of the Juneau-Douglas High School allowed students and staff, during school hours, to leave class and observe as the Olympic Torch Relay passed through Juneau. Joseph Frederick, a senior at the high school, came to school late that day but joined the spectators across the street from the school to watch the relay.  He, along with others, unfurled a fourteen foot banner which said “BONG HiTS 4 JESUS”. When the principal approached him and asked him to take down the banner, he refused to do so. He was suspended for 10 (later reduced to 8) days. The school based this discipline on its determination that Frederick’s speech, in the midst of a school sponsored activity, was reasonably interpreted as advocating illegal drug use. Frederick appealed this decision and sought damages against the principal, claiming his words were just “nonsensical” and not intended to be drug related in any way.

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There has been some confusion lately as to whether state statutes concerning appropriate license endorsements for school buses also apply to the drivers of passenger cars used to transport school students to extracurricular activities. So much confusion, that the State of Connecticut Department of Motor Vehicles (DMV) recently received a Petition for Declaratory Ruling seeking clarification on this subject from the DMV. 

Due to the level of interest in this matter, and the number of persons and organizations that could be affected by a Declaratory Ruling, the DMV has scheduled a public hearing to take place on Wednesday, August 15, 2007 at 10:00 a.m. at the Rowland State Government Center, 55 West Main Street, Waterbury, Connecticut.   

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