It is time for a change at Nutmeg Memorial High School. While no one has disputed his good intentions, Mr. Principal has never been a deep thinker. Accordingly, the Board was delighted when Mr. Principal announced his retirement effective at the end of this school year.
The Board quickly announced its plans for an inter-galactic search for "the best of the best" to lead its flagship school. Nancy Newshound, ace reporter from the Nutmeg Bugle, saw an opportunity for a continuing series on the search and appointment. The problems started when the Board first met with its search consultant to discuss its "vision of leadership" for the high school. Veteran Board member Bob Bombast moved to convene into executive session. Nancy was on her feet immediately, challenging the Board on its reason for the executive session. Bob responded irritably, "We are discussing Personnel Issues, if you must know."
That was not good enough for Nancy. She told the Board that she would be filing a FOIA complaint because she knew for sure that the Board would not be discussing any particular individual. The Board members’ guilty looks gave them away, and Nancy pressed her advantage. "Look, I understand that you can meet with candidates in executive session. But at this point, the public has every right to hear your discussion."
Much to the discomfort of the search consultant, the Board members decided to move forward in open session. The next day, the Bugle carried Nancy’s article about the search and the fees for the search consultant. To make matters worse, Nancy described in detail the Board’s discussion over qualities it was looking for in a new leader, whereby the Board was implicitly critical of Mr. Principal’s performance.
The Board went forward with the search. Nancy made several FOIA requests for the applicants’ résumés, but the Board ignored her. After narrowing the pool down to five finalists, the Board posted a special meeting as follows: "Executive session: interviews for high school principal." Nancy came to the meeting along with staff photographer, Sam Snapshot. Nancy conceded that the Board could conduct interviews in executive session, but she figured that she could get some good pictures of the applicants coming and going. When the Board convened its meeting, the members saw Sam and Nancy and went ballistic. Board member Red Cent asked Nancy to leave the premises, explaining that the Board had promised applicants confidentiality so that, if unsuccessful, they would not suffer consequences with their current employer. Nancy was unmoved, and she told the Board that she intended to camp outside the room during the executive session to get "candids" to accompany her story.
As a consequence of Nancy’s actions, two candidates withdrew from further consideration, and the others ended up entering walking down the hall past Nancy and Sam with their jackets over their heads, mobster-style. Sam got the snapshots, and Nancy ran the story. To make matters worse, when the successful applicant was appointed, Nancy ran the same picture with her story, with the headline, "Mystery Man appointed!"
Did it have to be this way?
In a word, no. The Freedom of Information Act permits public agencies to conduct a search process with confidentiality and dignity.
As a threshold matter, we note that Ms. Superintendent is conspicuously absent from this scenario. All certified staff members below the rank of superintendent are "teachers," and under the Teacher Tenure Law (Section 10-151(b)), the Board may appoint teachers and administrators only if they are nominated by the superintendent:
| (b) Any board of education may authorize the superintendent to employ teachers. Any superintendent not authorized to employ teachers shall submit to the board of education nominations for teachers for each of the schools in the town or towns in such superintendent's jurisdiction and, from the persons so nominated, teachers may be employed. Such board shall accept or reject such nominations within thirty-five days from their submission. Any such board of education may request the superintendent to submit multiple nominations of qualified candidates, if more than one candidate is available for nomination, for any supervisory or administrative position, in which case the superintendent shall submit such a list and may place the candidates on such list in the order in which such superintendent recommends such candidates. If such board rejects such nominations, the superintendent shall submit to such board other nominations and such board may employ teachers from the persons so nominated and shall accept or reject such nominations within one month from their submission. |
Given the role of the superintendent, it is important for boards of education to decide whether and how far to delegate the responsibility for appointing teachers and administrators. Many districts delegate that responsibility to the superintendent up to a certain administrative rank, such as principal or even assistant superintendent.
The main problem here is Nancy’s intrusiveness regarding the search process. The Freedom of Information Act provides for confidentiality in such processes in various ways. One global solution for such situations is for the Board to appoint a "personnel search committee," which the FOIA defines "a body appointed by a public agency, whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive-level employment position." Such committees may meet without complying with the posting and access requirements of the FOIA. Moreover, the Commission has ruled that the FOIA permits public agencies, including boards of education, to appoint its members to serve on such a committee. Had the Nutmeg Board of Education appointed itself to serve as such a committee, it could have met privately and avoided the problems Nancy caused.
The FOIA also protects the identity of job applicants. The provision requiring that persons attending executive session be identified in the minutes excludes "applicants who attend for the purpose of being interviewed by such agency." Moreover, the Commission has ruled that personally-identifiable information about unsuccessful job applicants may be kept confidential. Therefore, Nancy did not have the right to see the applications per se. However, the Board violated the FOIA when it ignored her. The Board should have responded. If Nancy persisted in her request even though she was not entitled thereby to learn the identity of the applicants (other than the successful applicant, of course), the Board would have been obligated to redact personally-identifiable information concerning the unsuccessful candidates and then provide the documents requested.
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.