See You In Court - June 2023

Last month, Mr. Superintendent announced his retirement from the Nutmeg Public Schools, effective January 1, 2024, after twelve years of distinguished service.  The members of the Nutmeg Board of Education were a bit panicked because only veteran Board member Bob Bombast had participated in the last Superintendent search.  With a silent prayer, Ms. Chairperson asked Bob if he would head up the search committee, and Bob eagerly agreed.

Bob’s first action as Search Committee Chair was to urge Ms. Chairperson to appoint a large committee to ensure representation of the various segments of the Nutmeg Public School community.  Ms. Chairperson dutifully appointed twelve people to the Search Committee, including three parents, three teachers, three administrators and three Board members, with Bob, Ms. Chairperson and Board member Mal Content representing the Board.

Bob called the first meeting of the Committee without posting the meeting, and to start the meeting, Bob passed out non-disclosure agreements to the Committee members to sign, signifying agreement not to share any of the details of the search process with persons not on the Committee.  Then Bob led the Committee in a discussion about the need to hire a search consultant.  The Committee agreed with Bob’s recommendation that the Committee hire CABE Search Services for that role, and Bob promptly signed a contract with CABE Search Services on behalf of the Committee.  Working with the consultants, the Committee members described the qualities that they were seeking in a new superintendent, approved a brochure advertising the vacancy, and let the search consultants get to work.  

Eventually, the members of the Committee received résumés of interested candidates from the search consultants, and after careful study of their backgrounds Bob emailed his candid comments on each candidate to the other members of the Committee.  Ms. Chairperson called Bob to question the wisdom of putting such comments in writing, but Bob dismissed her concerns by telling her to remember that the search process is confidential.

The Committee then prepared to interview the six round-one finalists it selected with the assistance of the search consultants.  The search consultants also gave Committee members a series of questions that they recommended be posed to each candidate.  However, Bob told the consultants that he prefers to be more spontaneous in interviewing candidates, and he and the other Committee members each made up their own questions to pose to the candidates.

Based on those interviews, the Committee narrowed the field to two finalists, who were interviewed again by the Committee.  Both candidates did a great job with the second-round interviews, and the Committee faced a tough decision between two good candidates.  Indeed, the Committee members split between the two finalists, with the teachers and administrators favoring one candidate and the parents and Board members favoring the other.

The Board members not on the Committee were curious about the hang-up, and they asked Bob for an update.  However, Bob explained that the process had to remain confidential until the Committee identified a candidate to recommend to the Board.

Word of the stalemate over the choice for Superintendent somehow leaked out, and local reporter Nancy Newshound got involved.  She immediately made an FOIA request for all records related to the search, and she questioned how the Committee was having meetings and exchanging emails without posting a single meeting.

How should the Search Committee respond to Nancy’s request and questions?

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One of the most important tasks boards of education have is to identify and hire a superintendent of schools.  Despite Bob’s prior experience, he and the Search Committee made a number of mistakes here that others should avoid in a search process.

As an initial matter, Bob was correct in his understanding that meetings of the Search Committee are not subject to the posting requirements of the Freedom of Information Act.   The FOIA has a specific provision permitting a public agency to create a “personnel search committee” “whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive-level employment position.”  Significantly, the FOIA provision goes on to provide that meetings of such committees need not be posted.

However, Bob erred in thinking that documents related to the search were also confidential per se.  A personnel search committee is a public agency, and its records are subject to the FOIA.  To be sure, records that would disclose the identity of an applicant for employment are exempt from disclosure under the FOIA, with one significant exception – any records from the search process that relate to the successful candidate are subject to disclosure.  Bob’s comments on candidates could be embarrassing even without disclosing the candidates’ identities, and any written comments about the successful candidate would be subject to disclosure without redaction.  Accordingly, members of personnel search committees should exercise care in writing emails or otherwise creating records as they conduct a search.

Ms. Chairperson appointed a committee that included a number of persons who are not on the Board.  As a threshold matter, we should check the bylaws of the Nutmeg Board to see if the Chairperson has the authority to create a committee, and it may be that only the Board can create a committee.  In any event, the Nutmeg Board missed an opportunity to simplify the process.  While at first blush it may seem counterintuitive, the Freedom of Information Commission has ruled that a public agency may appoint all of its members to serve on a personnel search committee, and that is the common practice for school boards.  Community input is important, but personnel search committees can obtain that input by inviting persons to their meetings as they see fit without posting the meeting (as long as the invitees do not comprise a quorum of another public agency).  By contrast, the committee in Nutmeg could meet with the full Board only in a posted meeting, with executive session being limited to subjects so privileged, such as discussion of individual candidates under consideration.

Bob and his Committee made two other mistakes.  First, having a set of prepared questions presented to each candidate is part of an effective interview process.  Moreover, consistency also serves to ensure a fair search process.  Asking different candidates different questions can result in a claim of discrimination by an unsuccessful candidate, either because the question relates to personal characteristics not justified by business necessary (e.g., “how old are you?” or “are you married?”), or because the candidate claims that unique questions posed to him or her operated to discriminate against the candidate.

Second, Bob signed the contract with the search consultants on behalf of the Committee.  However, the “sole purpose” of the Committee by statute was to recommend a candidate, and the Committee had no authority to enter into a contract, either on its behalf or on behalf of the Nutmeg Board.  Rather, once a personnel search committee identifies a search consultant, the board of education must take formal action in open session to retain the services of the search consultant, even if all the board members are serving as the members of the personnel search committee.