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Legal Brief                                                  Page 9

 

Sensitive Issues in

Superintendent Searches  

 

BY JOY BASKIN

Joy Baskin

As a school board begins searching for a superintendent, board members are naturally eager to find out as much as possible about top applicants. For candidates, the stakes are even higher, especially if accepting the post means moving to a new community, with a new contract, new colleagues and new board.

With so much on the line, superintendent candidates must be able to trust that boards will run fair and considerate selection processes.

Although boards must avoid certain inquiries in their candidate interviews, many board members remain curious about sensitive topics. Often, they want to know:

Will this person reflect the diversity of our community? The board may be attuned to community desires to expand diversity or have the superintendent “represent” a certain demographic. These impulses, even if well meaning, can constitute illegal discrimination. Boards can insist upon a diverse applicant pool, but ultimately, the hiring must be based on the candidate’s qualifications.

Will this person be there for us? Federal medical leave, military leave and anti-discrimination laws prohibit a school board from basing its hiring decision on the board’s assumption that a candidate may not be available to work based on issues such as a medical condition, pregnancy or continuing obligation as a military reservist.

Will this person fit in here? Information may surface about a candidate’s personal life that affects the board’s interest — a claim the candidate is gay, has engaged in extramarital affairs or has been divorced several times. A board needs legal counsel if dealing with such sensitive information in a search process.

Will the candidate’s spouse fit in here? School boards often arrange an informal dinner with a top finalist, his or her spouse, and board members’ spouses as the board zeroes in. Candidates should approach these informal settings with the same caution as formal interviews.

Even though potential employers are advised to steer clear of certain inquiries, candidates are not restrained from sharing information voluntarily. Right or wrong, most candidates would prefer to know up front if a board will have a hang-up with an aspect of personal background. That should be the candidate’s choice, not the board’s expectation.

Keeping It Private
Candidates currently employed often do not want their interest in a new position made public. They would like their application to be confidential.

Meanwhile, curious news media may use the Freedom of Information Act to gain information about candidates before the board makes a selection. Some state laws provide for greater public access, but most limit access to personnel records or the identity of candidates.

Confidentiality is a two-way street. Candidates should not disclose details about the search process without the hiring board’s consent.

Gathering Information
Temptations are great for individual board members to make personal inquiries outside of the formal search — including unauthorized calls to candidates or individuals who know the candidates or searches of social networking sites. These “fishing expeditions” can lead to legal complications if a board member:

  • Risks defamation by repeating a rumor or even a “half truth” that cannot be verified and harms the candidate’s career;
  • Gathers information relating to an applicant’s race, color, national origin, sex, religion, age, disability and genetics if these legally protected characteristics consciously or subconsciously influence a hiring decision; or
  • Misuses information in a candidate’s background check, including the candidate’s criminal or financial history.

Closing Deals
To the extent permitted by law, most boards prefer to announce a lone finalist; this allows the board to express its full support for the newly selected superintendent.

A superintendent finalist should be represented by his or her own attorney in the negotiation process and should review the tax implications of a compensation offer with his or her own tax adviser.

Joy Baskin is director of legal services with the Texas Association of School Boards in Austin, Texas. E-mail: joy.baskin@tasb.org

 

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