Saturday, April 23, 2011

Broken Arrow school district's explanation indicates school board violated Open Meeting Act

I criticized the Broken Arrow School Board on Wednesday for apparently violating the Open Meeting Act. The school district's subsequent responses to The Broken Arrow Ledger validate that condemnation.

The school board's agenda for Monday night had cited the personnel exception as the authorization for an executive session.

Under the personnel exception, an executive session is "permitted only for the purpose of discussing the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1)) (emphasis added)

But a district official told the newspaper that the school board only discussed reorganizing the district's administration -- not specific personnel -- during that closed-door session.

That means the board violated the Open Meeting Act because it wasn't entitled to conduct such a discussion behind closed doors. A 2006 attorney general opinion, for example, prohibits closed sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

"The legislative history of [the personnel] exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," the opinion said. (Id. ¶ 8) (emphasis added)

The agenda item for the school board's executive session failed to list any specific employees to be discussed -- another apparent violation of the Open Meeting Act.

In 1997, the state Attorney General was asked if a public body could "keep confidential the purpose of an executive session" under the personnel exception. The answer was NO. Agenda items for such a closed session must include either the name of the person or the person's position if it "is so unique as to allow adequate identification." The purpose is to give the public actual advance notice. (1997 OK AG 61, ¶ 5)

So based on the statutory language and the attorney general decisions, the Broken Arrow School Board was not entitled to discuss just reorganizing the positions. And if it actually discussed individual salaried employees with personnel changes in mind, then the names or unique titles of just those employees should have been listed on the agenda.

The board's agenda said only that the purpose of the executive session was to discuss "organization of district administration." On Wednesday, a district official explained to The Broken Arrow Ledger in an e-mail:
The meaning of that phrase was that any and all administrators were possible conversation topics during the executive session. The organizational chart that is posted on our website - click on "Departments" and then "BAPS Organizational Chart 2010-2011" - was the document that guided the executive session discussion. You will see that the chart contains some names, but mostly positions. The positions that were announced on Monday are on this chart.

With all that said, the last thing we want to do with any board agenda item is to cause confusion for the press or the public, so we can be more specific in future agenda wording. If listing all district administrators by name and title is a more efficient way to indicate that all district administrators are part of a conversation about "district administration," then we can list all district administrators by name and/or title. That seems to be a reasonable way to avoid any confusion.
According to that explanation, the board discussed individual administrators.

Furthermore, The Broken Arrow Ledger reported that after returning to the open session from the executive session, the school board approved five personnel changes:
  • Appointing new high school and middle school principals;
  • Promoting the executive director of curriculum to a cabinet-level position as the district’s chief academic officer;
  • Moving a principal to director of instructional services; and
  • Naming the Performing Arts Center director as the executive director of fine arts.
On Thursday, district spokeswoman Tara Thompson told the newspaper that the school board discussed the organizational chart in executive session and later voted for three changes to the chart in open session. Those changes were in the form of personnel actions promoting district employees to new jobs.

So based on this explanation, the superintendent went into that closed-door session with specific personnel actions in mind, but those employees weren't listed on the agenda under the executive session.

Thompson said two principals appointed during the open meeting at the same time the board approved the three personnel actions had not been part of the executive session discussion. Instead, she told the newspaper, those principals were listed under a general consent agenda item where other routine employment actions are considered.

However, the newspaper noted that the supplemental document to the general consent item listed only one of the principals.

The school board and district officials are either being disingenuous or simply don’t understand the law.

Thompson reiterated to the newspaper:
If we can be more efficient in our procedures, we will be happy to make those improvements, because ultimately, it's about customer service. If specifically naming all the administrators represented on the organizational chart will help the public better understand the topic of discussion during executive session, we will list, by title and name, all the administrators represented on the organizational chart and attach that to the agenda.
It’s awful nice of the school board to want to be more efficient. But based on attorney general decisions, the school board may not list all the district administrators and then discuss behind closed doors whomever they choose from that list.

Listing all the district’s administrators would serve only to camouflage from Broken Arrow taxpayers which ones the superintendent and school board intend to discuss. That's why the attorney general didn't provide it as an alternative to keeping secret the names of the employees who will be the subject of a closed meeting.

Simply put: The school board can't have it both ways. If it's going to discuss reorganizing positions regardless of which employees hold those jobs, then that discussion must be in front of the public. If it's going to discuss personnel changes involving individual salaried employees, then only those employee names or unique titles must be on the agenda.

The school district’s explanation is terribly disappointing but not surprising given this school board and district’s lack of transparency over the years. A culture of government secrecy can be difficult to change.

This is not just a matter of being more efficient; it’s a matter of complying with the Open Meeting Act’s requirements and respecting the right of Broken Arrow parents and other taxpayers to know what their government is doing beforehand.

Last July, Superintendent Jarod Mendenhall promised a commitment to the "spirit of full transparency and openness" by his new administration. "Transparency's got to be there," he said.

But the meeting agenda and the district's subsequent explanation don't live up to that promise. I sincerely hope that Mendenhall and the school board will reconsider how they conduct the public's business.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

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