Hiring a New Superintendent under the Open Meetings Act
Hiring a New Superintendent under the Open Meetings ActCandidates and Applications. Section 8(f) permits a public body to meet in closed session to review the specific contents of employment applications and applications submitted by individuals seeking appointment to public office, as in instances when a board of education is filling a vacancy on the board. This exemption allowing closed sessions applies only if the candidate requests that his or her application be kept confidential. If the applicant does not request confidentiality, a school board or committee of the board cannot review that individual’s application in a closed meeting. Further, this exemption does not include interviews of candidates for employment or appointment to public office. The OMA specifically states that all interviews by a public body for employment or appointment to a public office shall be held in an open meeting. The key words in Section 8 (f) are “review” and “specific contents.”The review process cannot be used by the public body as a means of deciding which candidates rank the highest or should be given interviews. As the Supreme Court observed, a public body engaged in the process of hiring a chief executive officer may meet in closed session to review applications of candidates who have requested that their applications remain confidential, but members of the public body cannot attempt to narrow the field of candidates through a consensus building process in closed session. All decisions to reduce the number of candidates must be made in open session. Booth Newspapers, Inc v Board of Regents of University of Michigan, 444 Mich 211 (1993).The high court further noted Section 8(f), permitting closed sessions to review the specific contents of applications for employment (when applicants request confidentiality), is clear and unambiguous. The “specific contents” provision permits closed sessions only to review personal matters contained in the candidates’ applications. Where the discussions go beyond a review of the applications, the OMA is violated. Booth Newspapers, Inc v Board of Regents of University of Michigan, 444 Mich 211 (1993).All members of the public body receiving applications are entitled to review these confidential applications. For example, although a city council may refuse to disclose to the public the applications of candidates applying for the position of city manager, when the candidates request that their applications remain confidential, a majority of the council may not refuse to disclose the applications to other members of the council. 1979 OAG 5500.Narrowing the Pool. A decision to eliminate certain applicants from further consideration, whether made by a school board or one of its committees, is a decision that must be made at an open meeting. When a public body votes or uses a consensus procedure to narrow the field of candidates, the public body must meet in open session. Booth Newspapers, Inc v Board of Regents of University of Michigan, 444 Mich 211 (1993). This court ruling applies regardless of whether the number of applicants is reduced in a single action or in rounds, using a series of decisions to shrink the pool of applicants who remain in contention for the position. Likewise, the board or committee decision to determine which candidates will be offered interviews must be made at an open meeting.The vote(s) must be taken in such a way that a person attending the meeting or reading the minutes can see how each board member voted. The Court of Appeals has ruled the public’s right to know how school board members voted on an issue is satisfied when the vote is taken by roll call, show of hands, or any other method by which each board member’s vote is made known to the public. Esperance v Chesterfield Township, 89 Mich App 456 (1979).Secret votes are not permitted at school board meetings. As the Court of Appeals explained in Esperance, “[A] secret ballot effectively closes part of a meeting to the public, since the ballot withdraws from public view an essential part of the meeting.” Interviews. All interviews of candidates for the position of superintendent of a school district must be conducted in public. The public interview requirement applies regardless of whether the interview is conducted by the public body, a personnel committee, or a single board member acting for the public body. Private interviews in person or by telephone are not permitted. Booth Newspapers, Inc v Board of Regents of University of Michigan, 444 Mich 211 (1993); Solum v Dickinson County Library Board, Unpublished, No. 235062 (2002). Although some applicants for public positions believe their privacy is violated by interviews open to the public, Section 8(f) of the OMA mandates open interviews. In addition, the Attorney General has ruled the requirement that an interview for employment or appointment to public office be conducted in open meetings does not violate the constitutional right of privacy of the applicant. The interest of the public in knowing the qualifications and hiring procedures of its officials is paramount to the applicant’s right of privacy. 1977 OAG 5183. The Attorney General also has rejected arguments that requiring open interviews in some, but not all, instances is discriminatory. The distinction between public officials and public employees who must be interviewed in public meetings and employees not subject to open meeting interviews is rationally related to the legitimate state goal of making government more open and accountable to the people. No violation of equal protection is found in the act. 1977 OAG 5183.However, an open interview does not mean members of the public attending the meeting must be given an opportunity to ask questions of the interviewee. If a public body conducts interviews for employment or appointment, the interview must be conducted at a public meeting. Members of the public have a right to be present during interviews of candidates for employment. But the OMA does not give members of the public a right to ask questions of the candidate being interviewed. The public must be given an opportunity to address the public body at some point during such meetings, but that right does not include a right to ask questions of a person being interviewed. 1981 OAG 6019. Making an Offer. Since every school board is required by law to employ a superintendent, the decision to offer the position to an individual must be made by the board. MCL 380.1229. This decision obviously must be made at an open meeting. (See Chapters 2 and 5.) As emphasized by the Attorney General, there is no exception from open meeting requirements that would allow a board of education to make this decision in a closed meeting. 1977 OAG 5183. Constructive Quorums and round robining. Successive non-public meetings of sub-quorum groups intentionally held to avoid complying with the OMA create a “constructive quorum” and violate the OMA. In other words, a constructive quorum is established when discussions between less than a quorum of school board members are communicated to enough other board members so that the total number deliberating constitutes a quorum. For example, in Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459 (1988), two separate meetings were held between various city council members, and although neither meeting alone had enough members in attendance to constitute a quorum, the Court of Appeals held that the two-day total was sufficient to constitute a constructive quorum and a violation of the OMA. Further, the Supreme Court, in a major case, determined the OMA was violated when the regents of the University of Michigan used round-the-horn telephone calls and meetings of subquorum groups of regents as means of narrowing the field of candidates in its search for a new president. The high court ruled the university board violated the law because board members deliberately used these procedures in an attempt to achieve the same intercommunications that legally could only have been achieved at a full meeting of the board. Booth Newspapers, Inc v Board of Regents of University of Michigan, 444 Mich 211 (1993). And. more recently, the Court of Appeals found that a constructive quorum was created when two city commissioners engaged in three separate private “get-togethers” with three other individual commissioners to discuss the termination of the city attorney. The Court noted that the several meetings “constituted far more than an informal canvas by one member of a public body to find out where the votes would be on a particular issue.” Hoff v Spoelstra et al, unpublished, No. 272898 (2008).In a ruling similar to the cases cited above, the Attorney General determined that a “round robin” system of deliberation violates the OMA as well. Round robining is a procedure where, instead of voting on an issue at a public meeting, a member of a public body goes to individual members to obtain signatures on a vote tally sheet without holding a meeting. This procedure defeats the public’s right to be present and to observe the manner in which decisions are made and violates the letter and the spirit of the OMA. 1977 OAG 5222.Superintendent’s Contract . A contract to employ a superintendent is a public document and requires approval by the board of education. To be valid, the board’s action approving the contract must occur at an open meeting of the board and be recorded in the board minutes. A school board may approve the superintendent’s contract in a single action or may use a two-step procedure, first authorizing a contract to be offered and later taking action to ratify the final contract. In either case, all of the board’s decisions must be made at open meetings.The exemption in Section 8(c) of the OMA permitting closed sessions for the purpose of strategy and negotiation sessions connected with a collective bargaining agreement does not permit closed meetings to discuss terms of a superintendent’s contract. The superintendent is not part of a collective bargaining unit. Meetings of a school board or a committee of the board to discuss terms of an employment offer to new superintendent must be conducted in open session. The same is true for discussions about modification or extension of a superintendent’s contract. ................
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