A recent discussion with a Board member at a Board meeting underscored for me the importance of a Board of Education reviewing and taking action on Committee recommendations regarding disabled students in executive session.
The Board member wanted to abstain from voting on a Committee recommendation because she believed she had a conflict of interest and felt obligated to tell her fellow Board members why she was abstaining. The Committee recommendation involved her disabled child. Fortunately, that Board of Education reviews and acts on Committee recommendations in executive session. The Board member was able to abstain from voting and explain why in the privacy of the executive session. Had this Board taken action on Committee recommendations in the open meeting, the public could infer that the recommendation involved this Board member’s child even if she did not explain why she was abstaining – the Board members voted on 15 recommendations, but this was the only one this Board member abstained from voting on so. . . .
As we have stated in Chapter 15 of Hornbook of Forms Regarding Children with Disabilities, Seventh Edition, under Public Officer’s Law § 100, the Board can adjourn to executive session for certain specified reasons. Although consideration of such Committee recommendations is not included under § 100, § 103 of the Public Officer’s Law states:
nothing contained in this article shall be construed as extending the provisions hereof to:
. . . .
3. Any matter made confidential by federal or state law.
Because of the confidentiality requirements contained in federal laws and regulations such as the Buckley Amendment (Family Educational Rights and Privacy Act), IDEA, and § 504, as well as the State Education Law and Commissioner’s Regulations, we have always advocated that a conservative approach be taken and that the Board of Education should review and take action on Committee recommendations involving disabled students in executive session, not in the open meeting. Our advice is consistent with the opinion of the Committee on Public Access to Records (COPAR), now the Committee on Open Government, which stated many years ago:
Both long-standing State law and the Federal Family Educational Rights and Privacy Act of 1974 provide that student records whether pertaining to a handicapped youngster or to any other youngster, are confidential and, with limited and specified exceptions, may not be disclosed to persons other than parents, the students in certain cases and appropriate school personnel. The Open Meetings Law specified (’ 98) that its provisions shall not apply to “any matter made confidential by federal or state law”.
. . . [A]ll proceedings related to the evaluation or placement of handicapped youngsters are exempt from the Open Meetings Law because they are made confidential by federal and State law. The exemption applies to meetings of the district committee on the handicapped, to any hearing.. . . and to any portion of a meeting of a board of education at which the evaluation or placement of a handicapped youngster is considered or acted upon. 16 Ed. Dept. Rep 457 at 460.
The one exception to not acting in executive session but rather in the open meeting is, as noted by COPAR, where a board of education proposes to contract for the education of a handicapped youngster, the contract must be authorized at an open meeting of the board. However, neither the student’s name nor any other personally identifiable information should be disclosed. Boards may find it convenient to use case numbers.
In addition, Counsel to the Commissioner of Education, Robert Stone, wrote in 1976 the following legal opinion (16 Ed Dept Rep 460):
It is my opinion, in which the Executive Director of COPAR concurs, that all proceedings relating to the evaluation or placement of handicapped youngsters are exempt from the Open Meetings Law because they are made confidential by federal and State law. The exemption applies to meetings of the district committee on the handicapped, to any hearing conducted at the request of a parent or guardian. . . and to any portion of a meeting of a board of education at which the evaluation or placement of a handicapped youngster is considered or acted upon. . . . Boards of education may consider such matters in executive session, and the minutes of any such session should not disclose the name or any other identifying information concerning any handicapped youngster whose case was considered.
Counsel Stone, similar to COPAR, further stated that if a Board of Education proposes to contract for the education of a disabled student, the contract must be authorized in an open meeting of the Board and that neither the student’s name nor any other personally identifiable information should be disclosed. Case numbers may be used.
Because Committee recommendations regarding disabled students are exempt under the Public Officers Law and review and action may take place regarding them in executive session, we firmly believe and advise that a Board of Education should review and act on those recommendations, with the one exception noted above, in executive session. The confidentiality rights of students and parents are protected. School personnel who discuss such recommendations and members of the Board who act on them in executive session are also better protected from claimed violations of breach of confidentiality.