There's been a swift shift in the paradigm thanks to a collection of recent Attorney General FOIA findings. No one loves FOIA more than I do. It's the most powerful tool a citizen has. It's living, breathing democracy at work.
Here we go:
It has been standard practice to conduct the annual evaluation of this state's superintendents in executive session. Delaware law provides for this. It states that these personal actions can only occur in public session at the request of the personnel.
Notwithstanding contracts themselves - contracts belong in the public domain.
Privacy is something else.
In fact, we love our employment privacy so much, that's its often an employers obligation. And contractual. The boilerplate contract that governs many of our supers in our district contain clauses like this one:
"The evaluation of the Superintendent shall at all times be conducted in closed session, and the evaluation and information concerning the evaluation, of whatever nature, shalle be considered confidential as provided by law."
The time debate the clause occurred three years ago. When the clause was consistent with the law. In fact, it's still consistent with the law. It's not consistent with the latest opinion of the Attorney General And that's the dichotomy.
So, what happens when the A.G. opinion contravenes the existing laws that govern employment practices? Furthermore, how does a public body respond when that contravention extends to contracts that when authored were consistent with prevailing labor law?
I don't know. But, I see a lot of wordsmything going on, especially in the posting for the upcoming BOE meeting. For example:
B. PERSONNEL MATTERS 1. Personnel Matters Include a Discussion of the Superintendent’s Competencies and Abilities [See 29 Del C 10004 (b)(9)] (from the BOE Posting)
These words are divergent from past years. So why? Well, if you've been following the drama unfolding at Kilroys and Execeptional Delaware, these words should sound familiar. They originate in the AG's APPO Opinion:
While it is true that FOIA permits a public body to discuss personnel matters in executive session, “a public body must establish that the private discussion directly involved the consideration of an individual employee’s competency and abilities.” Del. Op. Att’y Gen. 13-IB01, 2013 WL 2477025, at *17 (Mar. 26, 2013)
Compentency and Ability
Yes, the AG still affords that a public body can discuss personnel matters in executive session when the matter is consistent with evaluating an individual's competency and abilities.
Moreover, we have previously determined that a superintendent is not the “typical employee with potentially legitimate privacy concerns about his work performance” and that the public has a substantial interest in a superintendent’s job performance. Id., at *18.
Not the "typical employee"
This throws a wrench in the works. This is the new paradigm. This is where the questions begin. First and foremont, a pre-emptive request to the AG requesting an opinion given current contractual obligations. To be clear - noticing a meeting as has occurred does not mean that the BOE is attempting to contravene the AG's APPO opinion, In fact, the opinion goes on to state:
we find that members of the public were entitled to monitor and observe the Board member’s discussion of the renewal of Mr. Burrow’s Contract, even if a portion of that discussion touched on his competency and abilities as superintendent. Id.
In the APPO opinion, a FOIA was raised when the board appeared to have discussed the issuing or renewing of the super's contract during executive session. Contracts are always a no-no and the AG provided richer guidance as to when the public should be able to witness the board perform its work.
However, the BOE in this case has not noticed any discussion regarding the issuing of new or renewal of the existing contract. Thus, it is assumable that the BOE is within its rights and constraint of the law, the opinion, and the contract.
Let's discern a couple things - I am not a lawyer, this isn't a legal opinion. I am a FOIA junkie. You don't have to agree with my opinion, just like I don't agree with the interpretation over at Kilroys. But, you do need to know THREE things:
1) Yes, you can file for a preemptive finding when you think a violation is about to occur, and
2) AG opinions are NOT law. Should the AG find this meeting a violation of law at some point down the road, the Opinion can be appealed to both the Chancery Court and Superior Court. And, finally,
3) If you are an elected board member in the State of Delaware and you are about undertake your super's eval, I'd keep your attorney handy in the board room.
And we're having hamburgers for dinner tonight.