Board-Savvy Superintendent

The Improper Use of Executive Session

by Michael Elsberry

I’m a superintendent who is wary of executive sessions. Obviously, sound reasons exist for a board of education to hold these closed meetings. These include contract negotiations; the examination (with board counsel) of a legal problem; a discussion about the qualifications, competence or fitness of an employee or prospective employee; deliberation about a student expulsion; and, marketing/pricing strategies that would place the board in a tenuous position if known to potential bidders.

Plenty of problems exist with executive sessions. It’s too easy for a board and superintendent to get caught in the trap of discussing subjects other than the one intended. Also, boards and superintendents must be clear about the distinction between discussing an issue and reaching a consensus on a subject not intended for executive session.

School boards should exercise extreme caution when they move into executive session. Legal consequences can result if a public board is found to have reached decisions that should have been on an open public agenda.

I’ve also been faced with legitimate executive session details becoming public knowledge by the time I arrive at school the morning after a board meeting. I’d like to think this information is not intentionally leaked, but that’s difficult when an individual quotes a board member. We all must remember that the tiniest slip by a board member or his or her spouse can lead to destructive rumors.

Confidentiality means nothing to some individuals. The only scruples they possess are in ensuring they are the ones holding the real information.

Regular Violations

One of the most legitimate reasons for an executive session is the catch-all category of “for personnel reasons only.” This is also the reason most violated. In my 30-plus years as a school district administrator, I’ve discovered some boards will call an executive session for personnel reasons at the slightest hint their agenda for the evening is threatened. While hidden from public view, they decide what they’re going to say, who will say it, etc.

That’s a dangerous and illegal precedent.

Some board members use personnel reasons to tell the superintendent, outside the public’s eye, they want him or her to come down hard on a certain employee for alleged grievances the superintendent knows nothing about. In this way, the board member is able to weasel out of making the complaint during a public meeting. The board member’s action effectively places the blame on the administration for the perceived problem and creates unnecessary conflict between the administration and community.

Common Predicaments

Superintendents and board presidents should consider the following questions:

• Is your board in the habit of scheduling an executive session at every board meeting? Do your executive sessions take up as much or more time as your actual public agenda? Does a board member enter a meeting and request an executive session on something that’s outside the published agenda?

If any of these questions is answered affirmatively, you have a significant problem. I’ve observed the above actions occur because board members have failed to understand their roles. It’s especially treacherous in small school districts, where unexpired terms of board members lead to frequent turnover. This leaves the remaining board members to fill vacancies by asking for volunteers, who sometimes are individuals that would not likely be elected. In many instances, those volunteering have a personal account to settle with an educator.

This means board presidents have an inherent duty to ensure board members receive adequate training, which can be provided by their state school boards association. If problems continue, then other board members must ask questions, publicly, to clarify the need for another executive session. They also must not let “personnel reasons” count as an answer to their question.

• Are the topics of your executive sessions mostly complaints to the superintendent about staff members? Are these closed sessions held simply to ascertain a board member’s stance on an important issue? Do these sessions involve discussions of the personal positions of board members?

The superintendent must step forward at this time and put an end to these unnecessary and illegal closed meetings. If the superintendent does not do so, he or she may be searching for another job very soon. Of course, intervening with the board in this way also can lead to the superintendent landing in the job market very soon. It’s a Catch-22.

• Are executive sessions called simply to question the actions of the superintendent? Does your board schedule a preponderance of special meetings that quickly turn into executive sessions?

This habit must be corrected immediately. The board president and superintendent must both step in quickly to challenge the use of an executive session that has not been called for a valid reason. Special board meetings typically are scheduled to discuss subjects of significant interest, which means the meeting is open to the public.

If a superintendent’s actions are questioned regularly during executive sessions, the superintendent must respond in kind and do so in public.

Sound reasons exist for a board to call an executive session, but the days of closed-door maneuvering are over. Boards that act irresponsibly by convening such a session face potential legal battles, both in personal liability lawsuits and by violating open meeting laws. In some instances, these boards may even face criminal charges.

Mike Elsberry is superintendent of the Herreid-Pollock Schools Districts, P.O. Box 276, Herreid, SD 57632. E-mail: Mike.Elsberry@k12.sd.us