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:
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.)
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.”
[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:
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.
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.
