So You Want To Hire A New Superintendent: What Does The FOIA Permit (And Require)?

Pullman & Comley - School Law

Pullman & Comley - School Law

We are approaching a time of year where a board of education may have to deal with its long time and (hopefully) beloved superintendent deciding to retire or otherwise move on to another chapter in his or her life. Any feelings of sadness (or any other emotions) must be replaced by the fact that the board now has to hire a new superintendent of schools.  While getting the “right” person is paramount, the board still has to ensure that it complies with everyone’s favorite law, Connecticut’s Freedom of Information Act [“FOIA”].  Here are some practical pointers regarding this process.

  1. Hiring a Search Firm: The board may wish to utilize the services of a search firm to assist it with filling the position.  The board could meet in executive session to a) listen to interested search firm candidates (if there had been a competitive bidding process, with written proposals received from the firms) and then deliberate regarding their proposals, and b) regardless of the process used, discuss draft terms for a contract with a search firm.  Of course, the board’s vote to hire (and enter into a contract with) a search firm must be in public.
  2. “Personnel Search Committees” and the Screening Process: As for its actual search, the board could vote to create a personnel search committee. Such a committee, when formed with respect to an “executive level” position (such as a superintendent), is exempt in its entirety from the FOIA and its open meetings and notice/posting requirements.  The appointment of such a personnel search committee is useful in that it protects the privacy rights of those being interviewed and avoids the need of the board to take official action in narrowing the field of candidates (even to the final recommended candidate) as part of the interview process. The FOIA also protects from disclosure any records of a personnel search committee which would reveal the identity of a candidate (without that candidate’s consent).

The board could a) appoint itself as a personnel search committee, 2) designate one of its standing committees to serve as a search committee, or 3) create a new committee (which could even include non-board members). In addition, even if the board were to appoint itself as a search committee, it could also still designate a subcommittee to conduct a portion of the screening.

PLEASE REMEMBER: Not all gatherings of a board committee ostensibly acting as a search committee will be considered exempt from the FOIA’s meetings and posting requirements.  A personnel search committee is exempt from the FOIA’s requirements for only as long as it is engaging in activities protected by the search committee exception.  Based upon the FOIA, the Freedom of Information Commission [“FOIC”] views the role of a personnel search committee for purposes of this FOIA’s exemption as limited to 1) reviewing resumes, 2) interviewing and screening candidates and 3) considering and recommending the selection and appointment of an individual for the position.

  1. The actual hiring: When the board then considers a recommendation from a personnel search committee to hire a specific candidate, including consideration of the terms of employment, such as salary, for that candidate, it could discuss the possible appointment at a duly noticed meeting in executive session.  Such a discussion would clearly implicate the FOIA’s executive session exception for discussions concerning the appointment or employment of a public employee.  Of course, after deliberating over the specific recommended candidate and contract terms, the board will then have to vote in public to hire the superintendent (with a specific motion that identifies the person being hired) and to enter into a contract.

The benefit of the FOIA’s search committee exemption — especially if the board designates itself as such a committee — is that the actual winnowing down of the applicants, even to the final candidate, can be done in private. However, once you have done that, the “regular” FOIA reemerges, with the need to have specific enough agenda items and public motions and votes, including a) appropriate motions to enter executive session, b) votes to appoint or “elect” a superintendent, and c) votes with respect to the superintendent’s contract.  At this point, private consensus without an actual public vote is improper.

ONE FINAL WARNING: Given the importance of the position that is being filled, it is imperative that the board get this process right.  Without serving as a plug for business for lawyers, this might be a good circumstance to contact your board’s legal counsel to seek advice regarding the proper motions and actions.  It would not be a good start to the superintendent/board relationship for the FOIC to exercise its discretion to declare the board’s votes to hire and enter into a contract with the “new” superintendent to be null and void.

These and other issues are discussed  in more detail in Understanding Connecticut’s Freedom of Information Act, by Mark J. Sommaruga, Esq.  For a copy of this book, please click here.

Please note: this post is adapted from an article written by the author for the March 2019 edition of the CABE Journal. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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