There are times when we want to praise a public board for its dedication and hard work, but when that work is done in violation of state law, just how can we commend their actions?
In a 1997 decision, an El Paso County District Court judge issued an order restraining the El Paso County Board of County Commissioners from meeting in executive session to interview candidates for a position.
The commissioners had cited “personnel matters” as a reason for the interviews in executive session.
That judge found that the personnel matters exception “is limited to discussions of issues concerning current employees, not applicants for government employment.”
The court found that the plaintiff in the case, The Colorado Springs Gazette-Telegraph, would suffer injury by “denial of his right to attend an open meeting as guaranteed by Colorado’s Sunshine Law.” The court also noted that “The Colorado Sunshine Law … is designed to allow greater public accessibility to the workings of government.”
We agree with the judge and the plaintiff as we do not consider candidates for a job as personnel.
Failing to vote
Fast forward to this year on Nov. 19, right here in Pagosa Springs.
The Archuleta School District (ASD) Board of Education (BOE) made a motion to enter an executive session at a special meeting that night “pursuant to C.R.S. 24-6-402(e) and (f) to discuss the superintendent interview questions, determine interview procedures and the compensation package.”
The subsections of C.R.S. 24-6-402(4)(e) and (f), the statute cited by the BOE, pertain to discussing personnel matters along with “determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators.”
After making the motion to enter that executive session, the board failed to vote. Sure, that’s a technicality, but a very important part of the process. State statute and ASD’s board policy both require that an affirmative vote of two-thirds of the board must take place before entering executive session.
No vote took place.
Obtaining the recording
The SUN made a Colorado Open Records Act request for the recording and received this response from Darryl Farrington with Semple, Farrington, Everall & Case: “This firm represents Archuleta School District 50 JT, and your attached CORA request has been forwarded to me for response. As you know, the Board inadvertently failed to vote on the motion which was made and seconded to go into executive session. Upon information and belief, it was the intention of all Board members present to vote in the affirmative. No Board member voiced an objection, and the action of all Board members in leaving the opening meeting to reconvene in executive session is clear evidence of a unanimous vote in favor.
“The primary purpose of the executive session was the determination and preparation of questions to be used in interviewing candidates for the position of superintendent. This function needs to be done out of the public eye so that (a) no candidate can obtain an advantage in preparing for questions that will be asked, and (b) the Board will receive authentic responses when interviewing candidates, rather than responses that have been Googled and/or constructed after obtaining the advice of others. This is especially critical because there are expected to be local candidates for the position. Accordingly, it is crucial that this phase of the superintendent search process remain confidential.
“Because of this unusual situation, I respectfully request on the District’s behalf that you withdraw your request for the recording of the executive session.”
We responded that we would not withdraw our request.
The SUN received the recording the next morning.
More than a technicality
Even without the technicality in not voting prior to the executive session, The SUN would have protested the inappropriate executive session, which we believe should have been held in view of the public.
Colorado Revised Statute 24-6-402 states: “(3.5) A search committee of a state public body or local public body shall establish job search goals, including the writing of the job description, deadlines for applications, requirements for applicants, selection procedures, and the time frame for appointing or employing a chief executive officer of an agency, authority, institution, or other entity at an open meeting. ...”
We equate “interview questions” and “interview procedures” to “selection procedures.”
We equate “superintendent” to “chief executive officer.”
However, we cannot equate “executive session” to “open meeting.”
Making the grade
We would have given the BOE a grade of an “A” for following the rules of executive sessions, if they hadn’t gone in for reasons that don’t seem to align with state statute.
Nevertheless, in listening to the recording of the inappropriately held executive session, we were impressed by the board members. During the inappropriate executive session, the BOE stuck to the task at hand, developed thoughtful and effective interview questions and didn’t sway from the subject they declared for the session.
We heard a board that is deeply concerned about hiring the right candidate to lead this school district, someone who will improve tests scores and move the district forward. We heard an impressive level of intelligence and dedication to the process.
We would love to see more of this open, raw discussion in public meetings of all of our local public bodies.
Many times, we have listened to recordings of executive sessions and more often than not, public officials use that time as a free-for-all to discuss whatever they want to hide from the public. Not this board.
Correcting the course
We were torn over writing this editorial. We believe the BOE is trying to head in the right direction and we believe the board is trying to abide by Colorado’s Open Meetings Laws. Perhaps course correction is in order.
The SUN’s goal is not to derail the process in hiring a new ASD superintendent but to remind the board to follow the law in doing so.
Terri Lynn Oldham House
