By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

Many thanks to Linda L. Yoder, Guest Columnist and Partner, Shipman & Goodwin LLP,
who graciously provided the answer to this week’s legal question.

 
Dear Legal Mailbag:

School is up and running and so are those PPT meetings. During a recent meeting, a parent placed his cell phone face up on our conference table. As soon as we started, I noticed that the phone was recording. I asked him about this and he told me that he was not required to inform me that he was recording the meeting. I stopped the meeting and recorded for the District. The parent was adamant that the law changed in CT for recording PPT meetings. Looking forward to your reply!

Sincerely,
The Broken Record
 

Dear Record:

The right of a parent to record a PPT in Connecticut is well settled. It also is well settled that any individual who intends to record a PPT should provide notice to the other participants. A Parent’s Guide to Special Education in Connecticut published by the Connecticut State Department of Education in 2007 states that if either the parent or District intends to record a PPT, “all participants in the meeting must be informed that they are being taped.” However, in the case of parents or their representatives, there is no apparent consequence for failure to obey this guidance with two exceptions explained below. Legal Mailbag wants to caution you that this is not the case for the District. For example, other rules apply to employers’ recording meetings that involve employees in the workplace but that is a discussion for another day. Just suffice it to say, the District should not engage in undisclosed recordings of PPT meetings.

There are situations other than during PPT meetings when covert recording by a parent or other PPT participants is prohibited by law. For example, it is possible that a parent could leave a recorder running during a break in the meeting when the parents and their advocates leave the room. If such conduct were found to be intentional, the parent could be found guilty of the class D felony of eavesdropping. Eavesdropping occurs when a person intentionally records a conversation where they are not present without the consent of one person to the conversation. Conn. Gen. Stat. §§ 53a-187-53a-189. Similarly, there are statutes that provide for a private right of action for damages against an individual who records a telephone conversation without notifying all participants to the conversation. Conn. Gen Stat. §52-570d. However, Legal Mailbag would strongly discourage a district from spending time pursuing criminal charges or any kind of civil action against a parent in these circumstances. Instead, Legal Mailbag suggests that the best approach for the District is to behave as if each meeting is being recorded by requiring the school members of the team to come prepared to the meeting and to behave professionally at all times.

Certainly it is appropriate for the District to ask if the parents if they or their representatives are recording the meeting. If the response is yes, the District then needs to consider if it wants to record as well. A major consideration for school districts is that a PPT recording becomes an educational record that must be maintained by the District and provided in response to a records request, even if the parent also recorded the meeting. Given the volume of PPT meetings each year, Legal Mailbag suggests that districts should consider carefully whether a recording is needed. There are many non-adversarial reasons a parent might chose to record such as obtaining a record for a spouse who could not attend the meeting due to work commitments. Many districts choose not to record but ask the parent to agree to provide a copy of the recording if the parent challenges the PPT summary or recommendations so that the recording can be used to resolve any such dispute. On other occasions, particularly if the PPT meeting is long and the issues are complicated, the District may choose to record as an aid to creating accurate IEP documentation.

Irrespective of who is recording, the District also needs to be cautious about any conversations between the other PPT participants in the PPT conference room during a break in the meeting or after the PPT has ended but individuals remain in the room. At a minimum, the PPT chair should ask that the parents stop all recording devices or take such devices with them during any break and when the PPT officially is concluded. The District also needs to ensure that any recording it is making is stopped. This is particularly important if the District wishes to engage in a confidential conversation with its legal counsel during such a break, as failure to exercise caution could result in an inadvertent waiver of the attorney-client privilege.

Legal Mailbag also cautions strongly against the District using self-help to stop or erase a parent’s recording device that was left running. Instead, the District should address the issue immediately by reconvening the meeting and asking that the parent erase any recording that occurred when they were not present. This is an occasion when knowledge of the eavesdropping statute listed above could be useful.

In any event, Legal Mailbag observes that a parent’s choice to record a PPT covertly may be a sign that the school-parent relationship is broken. You may wish to reflect on that possibility and decide whether there is anything you can or should do about it.