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SEE YOU IN COURT! - September 2011

September 2011

Authors: Thomas B. Mooney

The Nutmeg Board of Education has had trouble keeping its high school principal. Perhaps it is the terrible pay. Maybe it was the way that Board members regularly second-guess the principals at the public meetings, with special gusto at the televised proceedings. In any event, Mr. Superintendent was disappointed but not surprised when Peter Principal came to his office unannounced, shut the door, and told Mr. Superintendent that he was leaving Nutmeg Memorial High School.

Mr. Superintendent sent an email to the Board members, breaking the news. Almost immediately, Bob Bombast sent an email to the other Board members designating the Board as a personnel search committee to find a new principal.

“I will be happy to serve as the Chair,” Bob graciously offered. “We have to work together, and let’s have our first meeting this evening, my house, 6 p.m. Pizza will be served.” The other Board members were just as happy to let Bob lead the charge, and they all showed up at 6 p.m. as requested. The Board members talked about the deficiencies of the resigning principal, and some of the discussion was even critical of Mr. Superintendent, for whatever part he played in the departure. However, the Board mainly focused on the search process, and it decided to forego the expense of hiring a consultant, relying instead on Bob’s network of family and friends.

Bob promptly placed an advertisement for the high school principal position in the Nutmeg Bugle, and a week later, Bob proudly reported to the other Board members by email that four people had applied, curiously all from Nutmeg. The “committee” decided to interview all four candidates and then share their thoughts by email. Bob’s preference was clear. His nephew Barry, his sister’s oldest boy, had applied, and he was Bob’s favorite from the outset. The other Board members did their best to assess Barry’s credentials objectively, and he did have a lot of experience. Indeed, in twelve years of education, he had been in seven different school districts. After extensive “discussion” back and forth by email, the other Board members concluded that they could not really say that Barry was any worse than anyone else. Bob thanked them for their input, and he sprang the news on Barry at a family dinner last Sunday.

No one was more surprised than Mr. Superintendent at the news that Bob’s nephew Barry had been named high school principal. He had been on vacation and away from email for two weeks. However, the Board members were also surprised at the vehement negative public response over alleged nepotism. Nancy Newshound, ace reporter for the Nutmeg Bugle promptly interviewed the Board members, Mr. Superintendent and Barry about how the selection was made. Nancy was shocked to hear that the Board had made this decision without input from the Superintendent, and she decided to do some digging. She filed an FOIA request for any and all documents concerning the search process, including email communications.

Can the Board deny the request on the basis that the search process was confidential?

*        *        *

Only in part. The Freedom of Information has ruled that applicants for employment have a right to maintain their identity as confidential in a search process. However, there are two caveats. First, the related documents may not be confidential, and a reporter (or any member of the public) may generally inspect or obtain copies of such documents. Personally-identifiable information concerning the unsuccessful candidates can be redacted, but the rest of the information must be provided.

Second, there is no such confidentiality privilege as to the successful candidate. Given the public interest in the credentials of and decision-making process as to public employees, all documents related to the hiring of the principal will be subject to public disclosure. That includes any email “discussion” of Barry’s family ties.

Significantly, the privilege to discuss candidates privately and the privilege to keep certain personnel documents confidential are not parallel. There is a broad right confidentially to discuss the appointment and performance of employees and candidates for employment (provided that the person being discussed is notified in advance, which was not done here). However, records (including emails) about candidates for public employment must be disclosed under the FOIA unless (1) there is no public interest in the information, and (2) the disclosure of the information would be highly offensive to a reasonable person. The emails in question here relate to the Board’s hiring Barry, and any emails back and forth about him would thus be subject to public disclosure. Board members must always be careful not to express intemperate opinions in email about district employees for fear of embarrassment to themselves or others.

There is a larger question here. The Freedom of Information Act permits public agencies to designate a personnel search committee “whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive-level employment position.” When a school board takes such action (including naming its own members to be the committee), the meetings of the committee are not subject to the posting requirements of the FOIA. The Freedom of Information Commission has ruled that the high school principal is such a position, and thus the Board could have properly met to fulfill this function privately. However, here, the Board never appointed such a committee, because Bob’s unilateral declaration was not Board action, and thus was ineffective. Therefore, the meetings of the Board to conduct the work of the “committee” violated the FOIA.

In addition, in his enthusiasm to see that his nephew Barry was appointed, Bob overlooked a statutory requirement for the appointment of a certified staff member. Under the Teacher Tenure Act, only the superintendent can nominate a teacher or administrator for appointment, and boards of education cannot make such appointments on their own. Unless Mr. Superintendent signs on, the Board cannot hire Barry.

Finally, the family relationship is troublesome, but not illegal. The statutes simply provide that a board of education member may not be “employed for compensation by the board of which he or she is a member in any position in the school system.” This broad rule against employing board members themselves even applies to coaching and substitute teacher service. However, there is no statutory provision that relates to wives, children or other relatives of board members. Boards often therefore pass nepotism policies to regulate such matters. In any event, Bob should have been more sensitive to the situation, and he should have recused himself from the hiring process as soon as he realized a family member was under consideration.

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