When an elected board flouts the law, the public loses

For the second time, the Guilderland School Board has violated the state’s Open Meetings Law by starting what it says will be an open search for a new superintendent with a closed session.

The current superintendent, John McGuire, announced in November, two years after he took the Guilderland post, that he will retire on July 1. At the board’s Jan. 5 meeting, its president, Richard Weisz, announced that the board had met with representatives from the Capital Region board of Cooperative Educational Services to discuss the search process. The closed session was held an hour before the televised public meeting.

The school board, with many of the same members, violated the law in the same way three years ago when it started its search for the current superintendent.

We wrote about the violation then and we’re reiterating our views now. School board members take an oath to uphold the law, and they should.

“It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy,” says the state’s Open Meetings Law. “The people must be able to remain informed if they are to retain control over those who are their public servants.”

The Open Meetings Law outlines eight reasons allowed for executive session. As we wrote three years ago and again this month, discussing the process for hiring a superintendent does not fit any of them.

“School boards drive me crazy,” said Robert Freeman this week. Freeman is the executive director of the state’s Committee on Open Government. He has served as the expert on New York’s sunshine laws since they were enacted.

Asked why school boards drove him crazy, Freeman went on, “Number one, superintendents are paid a hell of a lot of money to know this stuff. Number two, school attorneys are paid a lot, too. Too often, they give the answer they think the board wants to hear.

“It’s simple. You look at the eight grounds…If the board is not considering any specific candidates, if the board is looking at a process, there are no grounds [for executive session.]”

Freeman ended his passionate speech with a question: “Why would they want to discuss it in private? What is the downside of public discussion?”

He answered himself emphatically: “There is none. There is none.”

If the session had been open, as the law required, the public would have a better idea of why Guilderland chose the Capital Region BOCES district superintendent as a search consultant for finding a new leader for the Guilderland schools. The best we were able to do is report the board members’ views, after the fact, on the closed session.

Also troubling, both times the school board president quoted the BOCES representative as saying the session should be closed. The school board members themselves are responsible for following the law and keeping their meetings open when the law requires it.

Weisz said this year that “nuts and bolts” like salary could be discussed in executive session. McGuire currently earns $174,000 annually plus benefits.

The public is paying that salary and will pay the salary of the next superintendent, too. Citizens are entitled to hear the discussion on salary ranges, to hear both the views of the board members and the views of the consultant it will appoint to find a new superintendent. Was the argument made that a high salary is needed to attract a good candidate? We’ll never know.

The current $174,000 is more than many governors make. It’s well over the $136,700 made by New York’s Supreme Court judges and even over the $156,000 made by New York’s chief judge. So it is clear that recruiting highly qualified professionals for difficult and demanding public sector jobs isn’t always a matter of raising pay.

We hope that, going forward, the process will be more open. Last time that Guilderland hired a superintendent, the vote — a split one — was taken in an early-morning session that had not been properly posted. New York’s Open Meetings Law requires public notice of the time and place of a meeting scheduled at least one week prior be given to the news media and be conspicuously posted. Even in an emergency — which this was not — public notice is to be given “to the extent practicable, to the news media” and to be conspicuously posted.

Two newspaper reporters attended the session where McGuire was hired because a school board member, acting on his own, had called them to tell them about it.

As Freeman said, it is simple to follow the law. School board members should read it. The Open Meetings Law, posted at the website for the Committee on Open Government, is succinct and clearly written.

The neighboring school board in Voorheesville is conscientious about following the law. The last item for each meeting agenda posted by Voorheesville lists the eight grounds to go into a closed, executive session, with a blank space after each numeral.

This way, the school board can clearly indicate the legal reason for each matter it will discuss in closed session.

We’ll list the eight grounds here so that municipal and school board members are aware of them:

—   Matters which will imperil the public safety if disclosed;

—   Any matter which may disclose the identity of a law enforcement agent or informer;

—   Information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;

—   Discussions regarding proposed, pending or current litigation;

—   Collective negotiations pursuant to Article 14 of the Civil Service Law;

—   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;

—   The preparation, grading, or administration of examinations; and

—   The proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

We expect our elected representatives to follow the law and deliberate in public. As the Open Meetings Law puts it: “It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it.”

— Melissa Hale-Spencer, editor

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