The state Freedom of Information Commission will decide next month whether allegations of discrimination and racism among Norwalk school board members should be made public.

Those who want to keep it all secret point to Norwalk Board of Education bylaw Section 9010: “The board of education does not exist between meetings. Board members have no authority except at a board meeting or when discharging an assignment made by the board.”

Go ahead, read it again. It is a true monument to democracy. If you’re elected to a public school board, that’s really only when the board meets or if you are on an assignment from the board, otherwise you aren’t a member. Consider your congressman or congresswoman, elected to represent you, but not really when he or she is just walking around the Congressional district.

The first thing our FOI Commission must do is strike down that absurd section of Norwalk’s school board bylaws.

The next absurdity here is an African-American school board member claiming discrimination and racism, collecting “evidence” of it, but refusing to make the evidence public. I wonder what would have happened to the civil rights movement if Martin Luther King Jr. said he had evidence of discrimination but he wasn’t going to disclose it to the public?

A Norwalk news web site, NancyonNorwalk, run by Nancy Chapman took this case to the FOI Commission when the school board member refused to disclose what she had compiled.

It has to do with the search for a new school superintendent. Here is a public statement from Norwalk City Councilman Bruce Kimmel at the time: “When the BoE was trying to determine the superintendent candidates who would be interviewed in 2013, there was a rash of vituperative emails from BoE members Mike Barbis and Jack Chiaramonte directed at [fellow board member] Migdalia Rivas. Whether the assumptions made in those emails reflected insensitivity, perceptions of cultural stereotypes, bigotry or just frustration is known only to the senders. I believed, and let the senders know, that the accusations were unfair. In my opinion, our BoE (and I fault myself for not pursuing the issue) missed an opportunity to address the tone of those emails and perhaps start a discussion of how a lack of empathy can be perceived as prejudice even when no such intention exists.”

So maybe there was racial antagonism, maybe not.

Board member Rivas emailed other board members stating, “I am very concerned that I have been (criticized) for my decision-making process with false accusations and assumptions. In fact the tone of these emails are political, derogatory, insulting and racial. Through these emails the search process has been tainted. I am therefore requesting that the board meet in executive session to discuss these finalists before we interview anyone. Putting off first interviews for a few days will not hurt. I am also requesting that the City Ethics Committee and Human Relation Commissioner meet with this Board.”

Rivas and school board member Shirley Mosby, who is African-American, took the discrimination complaint to the Norwalk NAACP. But they claimed they were not discharging a duty or fulfilling an obligation as school board members. Never mind that these were emails received and sent by school board members.

FOIC hearing officer Valicia Dee Harmon, in a 5-page decision Jan. 15, found first that Mosby and the school board constitute a public agency. But she also found: “when Mosby obtained copies of certain records from the board and compiled (her) notebook, she was not discharging an assignment that had been given to her by the board (and) that none of Mosby’s activities with regard to obtaining and copying records were performed in connection with any board meeting . . . rather she did so in her private capacity and during her personal time.”

And so NancyonNorwalk was denied access to the documents.

State FOI law does not allow for using litigants’ bylaws (“The Board of Education does not exist between meetings”) as the basis for deciding whether documents are public or not. Records kept by a public official, as defined in state law, in his/her capacity as a public official, are public records and subject to disclosure, unless exempt.

There is no exemption for a public agency not existing between meetings. The FOIC must reverse its hearing officer and make the documents public.

James H. Smith is president of the nonprofit Connecticut Council on Freedom of Information.

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