Thoughts on how to improve the Board selection process

Board deadline for public comment on their appointment process is today - here are my comments.

I am encouraged that the Board has reached out to the public for input on its process for appointing a new Board member to fill the seat recently vacated by Dan Egan.  The Board’s willingness to engage the public in this discussion and seek feedback on its proposed process indicates to me that the current Board is interested in conducting its business with increased transparency and public involvement.

Unfortunately, the way in which the Board and district administration handled the appointment process during the most recent vacancy last year was secretive, biased, dishonest, and in violation of New York Open Meetings Law.  However, it would not be difficult to fix these issues and have a process that is fair, open, and conducive to selecting an excellent candidate. Here are my suggestions for how the process should be improved to come into full compliance with New York State law and increase public trust in the Board’s decision-making process:

1. The Board should release candidates’ letters of interest and resumes to the public immediately after the deadline for submitting applications so that members of the public who are familiar with the candidates can provide feedback and recommendations to the Board before the final selection is made.

What happened last time: I submitted a FOIL request for candidates’ applications on June 13, less than 24 hours after the deadline, but did not receive the requested documents until July 22, after the Board’s selected candidate had already been appointed.

2. The Board should implement a consistent screening process to determine candidates’ eligibility to serve on the Board. Ideally, district counsel should conduct a screen of all applications received, and carry out the screening process immediately after the application deadline. No candidate should be rejected before district counsel has performed a thorough review of the applicable Education Law.

What happened last time: Board clerk Catherine Cutting rejected two candidates’ applications on her own without consulting district counsel. She rejected one applicant, a district employee, via email the same day his application was received. A second applicant, a city employee, did not receive an email from Cutting notifying him he was ineligible until the day after the application deadline, three days after his application was received by the district.

Although one Board member had questions about Kenny Bruce’s eligibility due to his residence, there’s no indication that anyone asked district counsel to check into this issue.

3. The district should request an advisory opinion from the New York State Attorney’s General’s office as to whether Education Law § 2502 prohibits employees of the city of Albany from serving on the city Board of Education.

What happened last time: The city employee who applied immediately questioned Cutting’s rejection, asking her to review the applicable sections of Education Law. Less than three hours later, Cutting emailed him an explanation which she claimed had been “provided by our attorney, Jeff Honeywell.” However, billing records from Honeywell’s firm indicate that Honeywell did not perform any work for the district that day. A junior associate with the firm did perform 0.3 hour work that day (no more than 18 minutes) on “Board issues – communicate [redacted],” which may have been related to this issue. However, no substantive research could have been done in such a short time period. (Note that a city employee in the same job title was allowed to run for the Board in 1989, and at the time, the assistant counsel for NYSED was quoted by the press as saying that under his initial interpretation of the law, appointed Albany city officials are legally able to hold seats on the school board.)

4. After applications have been submitted, all candidates should have equal time to make their case to the Board through their 3-minute public presentations at a Board meeting. Individual Board members should not invite candidates to private meetings in advance of their public presentations, in order to avoid the appearance of bias and the perception that a favored candidate has been “coached” to say what the rest of the Board wants to hear.

What happened last time: two days after the application deadline, Board member Dan Egan emailed applicant Kenny Bruce and invited him to meet, “just you and me.” They met a few days before Bruce’s presentation to the Board. Bruce told Egan in a thank you note after the meeting, that the meeting was “extremely helpful” and he “appreciate[d] [Egan’s insight.” Egan replied, “I think you’d make a great school board member…as you know, that is up to the 6 members though.”

5. The Board should discuss the candidates and make their selection in an open meeting.

Choosing to discuss candidates and make their decision in an executive session not only presents the Board as not interested in transparency and public accountability, it may expose the Board to legal liability, and may even result in a judge vacating the Board’s appointment altogether. There is no reason for the Board to risk this type of negative consequence when discussing candidates in public is permissible under law.

Committee on Open Government Advisory Opinion OML-AO-4842 (2009) says:

[T]he Open Meetings Law is permissive; although it may conduct executive sessions in circumstances authorized in §105(1), there is no obligation to do so. If, for example, a motion to enter into executive session to discuss “a matter leading to the appointment of a particular person” is not carried by a majority vote of the total membership of a public body, that entity may choose to discuss the matter in public.

In Gordon v Village of Monticello, Inc., 87 NY2d 124 (1995) the New York Court of Appeals affirmed a lower court’s ruling that appointments to vacant elective offices cannot be made in executive session. This case resulted in the appointments being voided by the courts and attorneys’ fees being awarded to the plaintiff who challenged the village’s appointment process. The Court of Appeals described the village Board’s actions in this case to be “open and flagrant” violations of the Open Meeting Law – the “Board’s machinations”were “patently illegal” and declared “null and void.”

See also Committee on Open Government Advisory Opinions OML-AO-2565 (1996), OML-AO-2773 (1997) and OML-AO-3354 (2004). To quote from OML-AO-3354:

[W]ith regard to the process of filling a vacancy in an elective office, the only
provision that might justify the holding of an executive session is §105(1)(f) of the Open Meetings Law, which permits a public body to enter into an executive session to discuss:

"the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation..."

Under the language quoted above, it would appear that a discussion focusing on the individual candidates could validly be considered in an executive session, for it would involve a matter leading to the appointment of a particular person. Nevertheless, in the only decision of which I am aware that dealt directly with the propriety of holding an executive to discuss filling a vacancy in an elective office, the court found that there was no basis for entry into executive session. In determining that an executive session could not properly have been held, the court stated that:

"...respondents' reliance on the portion of Section 105(1)(f) which states that a Board in executive session may discuss the 'appointment...of a particular person...' is misplaced. In this Court's opinion, given the liberality with which the law's requirements of openness are to be interpreted (Holden v. Board of Trustees of Cornell Univ., 80 AD2d 378) and given the obvious importance of protecting the voter's franchise this section should be interpreted as applying only to employees of the municipality and not to appointments to fill the unexpired terms of elected officials. Certainly, the matter of replacing elected officials, should be subject to public input and scrutiny" (Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994), modified on other grounds, 207 AD 2d 55 (1994)].

Based on the foregoing, notwithstanding its language, the court in Gordon held that §105(1)(f) could not be asserted to conduct an executive session. I point out that the Appellate Division affirmed the substance of the lower court decision but did not refer to the passage quoted above. Whether other courts would uniformly concur with the finding enunciated in that passage is conjectural. However, since it is the only decision that has dealt squarely with the issue at hand, I believe that it is appropriate to consider Gordon as an influential precedent.

What happened last time: the Board entered into an executive session on July 1 in order to discuss “particular personnel,” which presumably included the Board candidates. According to the Board website, this is the only time the Board met between June 19, when the candidates made their presentations, and July 17, when Kenny Bruce was appointed as the new member.

Apparently someone notified Kenny Bruce that he had been chosen for the position no later than July 10, because he emailed Catherine Cutting on this date requesting a specific person to swear him in at his appointment on July 17. However, official rejection letters (or selection letter, in Bruce’s case), were not mailed to candidates until July 11.

Did the Board decide to appoint Bruce during their executive session on July 1 and then wait more than a week to act on their decision? Or did they make the final decision in a subsequent meeting which was never made public? Under the Open Meetings Law, executive sessions can only be entered into during an open meeting which has been announced to the public in advance. See Public Officers Law sections 105 (1) and 104. If the Board made the final decision to appoint Bruce in a telephone conversation or over email, this would also be a violation of the Open Meetings Law. See Cheevers v. Town of Union (Broome Co. Sup. Ct. 1998); also see Committee on Open Government Advisory Opinion OML-AO-4534 (2007).

Now that we once again have a vacancy on the Board, the Board has the opportunity to learn from its past mistakes and begin work on formulating a process that Board members and the public can be proud of. I am hopeful that the Board will take these suggestions under consideration and incorporate them into their new process for selecting a Board member. The Albany schools are facing some serious challenges ahead, and our children and families deserve to be represented by the best possible candidate to advocate on their behalf. Improving the process by which the new members is selected will help guarantee that the best candidate is chosen for the job.