Board-Savvy Superintendent

Boards, Personnel and Confidentiality

by NICHOLAS D. CARUSO JR.

A superintendent is asked to place a personnel matter on the board of education’s meeting agenda, with the understanding it will be dealt with in closed or executive session. This is nothing new. In fact, the school board does this at pretty much every meeting.

The board is voting on the hiring of a new varsity football coach but doesn’t want the community to know why they are not hiring the current assistant coach. You are uncomfortable because something doesn’t feel right. The board’s attorney already has advised the members against doing so.

Caruso.jpgNicholas D. Caruso Jr.


You have good reason to feel uncomfortable.

Too often, superintendents deal with this issue the simple way — they ignore it. In this case, the right thing to do may be the hardest.

It is not easy to dispense advice on employment law or freedom of information because these laws vary from state to state, yet general guidelines may help your district. (Full disclosure: I am not an attorney. If your district has a particularly sensitive issue, consult your board attorney.)

Employment Law
In most states, teachers and administrators are covered by collective bargaining agreements. Even if not, laws everywhere protect employees from improper treatment. Hiring is especially difficult because boards of education often make decisions that are better off being made by the superintendent or at the building level. In particular, boards often find themselves hiring coaches of sports teams and other noncertified personnel.

Boards shouldn’t be spending much time on personnel issues. Other than accepting recommendations for hiring by the superintendent, creating a position (hence a budgetary decision) or disciplining a staff member (based on the recommendation of the superintendent), the board should not be taking time on personnel matters. Boards don’t evaluate personnel, especially not volunteers like coaches and such, and hiring should be left to those who will hold them accountable through evaluation. If the principal is going to hold the staff member accountable, then the principal should have a major say in who works for him or her. Even the superintendent should honor that system as much as possible.

If you have district policies that govern the hiring process, you and the board must follow them. I’ve seen board members trample over a candidate’s rights — either failing to consider the candidate because of a personal beef or picking a favorite for personal reasons. That could be a lawsuit waiting to happen.

Employment law is complex. Hire a good attorney to represent you, and listen to his or her advice. If the school board tends to ignore the advice of counsel, schedule a meeting between the board and the attorney so they can learn the implications of improper actions, should they do anything inappropriate.

Unlawful Closures
A common mistake is for a board to add an agenda item called “Executive Session.” No such thing exists. The board may place an item on the agenda entitled “Hiring of personnel” or “Discussion of disciplinary action against an employee,” but not simply “Executive Session.” A session closed to the public is procedural; it is not a topic of discussion.

If two-thirds of your board (assuming your state laws or policies don’t state otherwise) vote to go into executive session, then the board is, in fact, in closed session. However, just because the board members do not want a discussion to be held under public scrutiny doesn’t mean they can decide not to. Boards don’t get to choose what they want and don’t want to talk about in public session — the law defines that.

If you feel that the board is not following the law appropriately, include that as part of the discussion with the board’s attorney. Invite a representative of your Freedom of Information Commission to discuss the appropriate use of executive session. In Connecticut, our commission has an extremely knowledgeable public information officer who regularly meets with town agencies to discuss what is legal and what is not. Perhaps someone in a more official capacity might better hold the board members’ attention.

Ultimately, as superintendent, you are not allowed to knowingly violate the law (and as CEO of the district, it is your job to know the law). You have an obligation to advise the board on the legalities of their actions.

If your legal counsel tells you the board is violating the law, talk to the chair first and ask for his or her help in keeping the board’s work legal and proper. In your conversation with the board chair, explain that you can’t participate in an illegal meeting. If the chair doesn’t go along and the board votes to go into closed session improperly, I would recommend not participating. If the board votes to go into executive session, quietly leave with the rest of the public.

Of course, walking out of a school board meeting will be construed as a slap in the face, and it might be time to update your resume. That is why it is important for the board’s attorney to talk to the members about this and, even better, for the attorney to tell board members (and you) that it is most appropriate to leave rather than participate in an illegal meeting.

Nick Caruso is senior staff associate for field services and coordinator of technology with the Connecticut Association of Boards of Education in Wethersfield, Conn. E-mail: ncaruso@cabe.org