Honest Mistake Still Violate First Amendment

 The Norwalk BOE created a new rule to limit public comments at a June 10 Special Meeting.  It violated the First Amendment.  The changes since made to that new rule still violate the First Amendment.  Here's why . . .

As one speaker articulated at June 3rd’s Board of Education budget meeting, the City Charter dictates that the members of the Board of Education are elected to serve the interests of our community in supervising the work of the Superintendent, in overseeing the hiring of all public school employees and in crafting the school department budget.  Therefore, it would be unimaginable to think that any Board member would intentionally want to mislead the public about what is actually contained in the budget or limit the public’s right to participate in the budget process.

But mistakes can and have been made that merit a purely factual review. As a former BOE member, current dad to an almost-sixth-grader & Norwalk taxpayer, I have a vested interest in seeing our institutions succeed.

First, the BOE’s own policies direct that materials being reviewed by BOE members must be made available to the public (Policy No. 9008, II,B).  However, the “reconciliation plan” dated June 3rd was not posted on the BOE website or published with the agenda that was posted for that meeting.  That report has only been recently posted.  Therefore, the public was not made aware of the specific actions (e.g., the actual changes to the original budget passed by the BOE in January) that the BOE would be voting on at the June 3rd meeting.  Therefore, the public did not have the opportunity to voice their objections (or support) for those specific provisions.  Consequently, although public comments were allowed during the June 3rd meeting, the allowance was ineffective.  

As an aside, one might want to suggest that after a meeting has been adjourned one should not try to amend its agenda.  A suspicious person might feel that attaching the reconciliation plan to the June 3rd meeting agenda after the meeting ended could be part of a coverup. Others, however, might want to argue that calling such an obvious faux pas a “cover-up” is insulting to skimpy terry cloth beachwear.

Secondly, the Special Meeting to be held on June 10th is not a continuation of the June 3rd meeting for that regular meeting was adjourned.  The Special Meeting is a new meeting with its own agenda.  The BOE is obligated to fairly apply its own rules as set forth in the 9000 series of the BOE’s Policies and required by the state’s Freedom of Information Act (which includes the state’s “Open Meeting Law”).   BOE Policy 9010(VI) provides that the BOE “may” allow for public comment.  However, the Freedom of Information Act and the applicable provisions of the First Amendment of the U.S. Constitution do not allow the BOE to pick and choose which members of the public may speak.  The newly announced rule says that the only people who can speak at the June 10th meeting are those who attempted to participate electronically at the June 3rd meeting followed by anyone else (provided no more than an hour has been spent on public comments). But, there is no  foundation in law or BOE policy to allow for such a severe limit on the public's First Amendment rights.  If we didn’t know the plan being considered on June 3rd, why would we necessarily speak (unless, there is now a separate rule for clairvoyant citizenry)?  Additionally, if public comments are subject to BOE policy then there should be a vote of the BOE to change the rule.  But, I haven't seen that proposal on the agenda. 

Third, the BOE cannot limit the parties who can speak at the June 10th Special Meeting if it intends to allow any parties to speak.  Now that the budget reconciliation plan has been disclosed to the public, the public has a right to address all those provisions which were unknown on June 3rd.  Even if the proper rules were followed to change the BOE policy about public comments (which did not happen), one would still need to contend with the fact that the rule was changed by some members of the BOE who had knowledge of who was signing up to speak on the Zoom portion of the meeting.  Clearly, the clairvoyants-only speaking rule might not be considered a reasonable time, place and manner restriction on citizens’ First Amendment rights.

Fourth, the budget process undertaken by the BOE this year has diverged from the applicable laws and norms governing municipal budgets.  The law (C.G.S. Sec.10-222) requires that the BOE include in its budget all sources of revenue.  Yet, the 2025-2026 budget does not list any sources of revenue other than lunch receipts and some state and federal grants.  Tuition paid to the Norwalk Public Schools, gym rental receipts and licensing fees are among those potential sources of review which are not disclosed.  Under state law (C.G.S Section 10-222a), rental receipts and custodial fees are protected from being grabbed by the city; they are the school department’s property to be spent by the school department without city interference. So, they really need to be included in the budget.  And while singing another refrain from original , overly wordy Britney Spears tune “Oops, I Unintentionally-and-Honestly-(Respecting-the-Rights-of-the-Students) Did It Again,” let me  mention that also missing from the school department budget is the amount and uses of the federal Perkins grant (awarded under strict guidelines for career and technical education).

Fortunately, all these mistakes can be fixed by the BOE providing all the information missing from the budget, allowing the public to speak at the next BOE meeting and then holding a truly special meeting for the express purpose of voting on a reconciliation plan free from the taint of unintentional violations of state budget law, the Open Meeting Law  and the First Amendment.