Fayetteville School Board violates FOIA once again

Times editorial today -- FOIA violations by School Board -- why open government is important‏
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Time to study harder – (School Board FOIA Violation)
Greg Harton gregh@nwarktimes.com

Posted on Sunday, March 30, 2008

URL: http://www.nwanews.com/nwat/Editorial/63652

School board editorial in NWA Times
The Fayetteville School Board violated the Arkansas Freedom of Information Act Thursday night.

Some of them will probably be surprised to learn that.

The state’s open meetings law, designed to make sure decisions about public matters are made in public, permits public bodies to go into closed-door sessions to consider personnel matters.

That’s what the Fayetteville Board of Education did (absent members Susan Heil and Howard Hamilton ) to review the roster of 11 applicants to replace retiring Superintendent Bobby New. The school board previously released the names of all the applicants, as required by state law.

But after discussing the matter behind closed doors for more than an hour, school board President Steve Percival emerged to tell two reporters that they had narrowed the list to four finalists, but he didn’t want to reveal them to the public immediately. The reporters accepted that.

Everyone involved, instead, should have abided by state law.

The Arkansas Freedom of Information Act is clear: “ No resolution, ordinance, rule, contract, regulation, or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation or motion. ”

In laymen’s terms, executive sessions are about shielding certain exempted discussions from public view, but not decisions.

How can the school board narrow the list to four people without taking a vote ? Maybe they didn’t formally propose a motion in their executive session, but through some sort of process unseen by the public, the board absolutely reached a decision. That demands reconvening in public and taking a vote so that the public can have a record of how its representatives voted on the matter.

Once Thursday’s executive session was over, the school board emerged only to say they were adjourning. No votes were taken.

What’s the problem ? The public, state law and openness insists, must be able to see how its elected leaders vote. Perhaps this was a unanimous decision by the five school board members who were there — Tim Kring, Tim Hudson, Percival, Becky Purcell and John DeLap. Perhaps one or two preferred another collection of candidates and didn’t support the four finally selected. We will never know.

Without a vote in the open, the public is denied its right to see the decision-making conducted on its behalf. Perhaps some may see the winnowing of this list to four people as unimportant, but public bodies must be held to a standard of openness with each decision. No decision of a public body is insignificant.

Last July, as the school board discussed the qualifications it wants in its next superintendent, Percival called an executive session to discuss “ employment of the superintendent, ” even though no applications had been taken for the position. The discussion could not have been about specific personnel, and thus the entire discussion was a violation of the Arkansas Freedom of Information Act.

In that matter, I asked Percival and the school district’s attorney to refrain from illegal executive sessions and to pay close attention to what can be legally discussed within sessions that exclude the public.

Thursday night’s actions indicate a little more vigilance is in order. Percival, who is director of human resources for Washington Regional Medical Center, is no doubt trained to follow the letter of the law when it comes to WRMC’s employment practices. There is no reason to believe a clear understanding of the law regarding executive sessions and the conduct of public meetings is beyond his, or any school board member’s, grasp. Percival, though, has from the start wished to keep the superintendent search more private than Arkansas law allows,

Some folks — perhaps even the elected school board members — might say “ what’s the harm ? ” in all this. Percival said he wanted to contact the finalists first and their names would be revealed to the public. Does it matter to the public whether they learn of the decision Thursday night or Friday ?

Perhaps not, but one must remain steadfast in his respect for the public decision-making process. It is not for the school board president or school board members to decide when decision-making can happen behind close doors. It is a long-standing tenet of Arkansas’ laws that decisions affecting the public should be made in public.

It’s pretty simple: No decision reached in executive session can be valid unless and until the members of the board emerge and put themselves on record either in support of or opposition to the matter.

The school board’s decision to narrow the list to four candidates is no different than the vote its members will ultimately take to hire a new superintendent. Is there some assumption on the part of the school board that the superintendent decision can be reached in executive session, but announced a day, a week or a month later when the board president is comfortable with revealing the information ?

Such an assumption would fly in the face of open government and state law.

I’d bet money that the school board members reading this would say “ we didn’t know” or “ we didn’t mean to, ” and I don’t doubt them. They probably also would decry getting kicked around because of one error when they pride themselves on openness.

The problem is these violations of the law always flair up at critical decision-making moments. School board members will never violate open-meetings laws when they’re voting to support a resolution praising the district’s national merit semifinalists. The violations will always happen on crucial decisions when the public’s right to observe the decision-making process is most important, and when, perhaps, school board members are less comfortable rendering public decisions.

It shouldn’t require a newspaper editor to remind the school board president of his responsibilities to the public. Every time school board members veer toward secrecy on an issue, they should recognize their responsibility to determine whether they are within the law, and part of each member’s leadership should be staunch advocacy for very public decision-making.

Greg Harton is executive editor of the Northwest Arkansas Times. His columns appear on Sunday.

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