GUILDERLAND — The school board postponed a closed session it had planned for Tuesday night after a number of school board members decided not to go.

At issue is whether the executive session would have been legal.

The meeting had been scheduled for 7 p.m. at the offices of the Capital Region Board of Cooperative Educational Services on Watervliet-Shaker Road.  The board had met on Jan. 5 in an executive session with Charles Dedrick, BOCES superintendent, and Mark Jones, also from BOCES, about the process for finding a new Guilderland superintendent since the current superintendent had announced his retirement.

In its regularly scheduled televised public session on Jan. 5, directly after the closed session, the school board voted to use Dedrick as a consultant in the search process.

At last Tuesday’s school board meeting, member Denise Eisele, who chairs the board’s communications committee, mentioned another meeting with BOCES, scheduled for this Tuesday, Jan. 26, that might conflict with a communications committee meeting.

The Enterprise ran an editorial last Thursday, Jan. 21, “When an elected board flouts the law, the public loses,” criticizing the school board for holding the closed session on Jan. 5 in violation of the state’s Open Meetings Law.

No notification was made, as the law requires, of the board’s scheduled Jan. 26 meeting with BOCES, although the district did send out a notice that the communications committee meeting was cancelled; it also sent a later notice that the communications committee meeting was rescheduled.

Tuesday afternoon, The Enterprise asked school board President Richard Weisz if there was a school board meeting scheduled for Tuesday night.

“We’ve tentatively scheduled a meeting with BOCES to review some of the issues that will help form the public discussion going forward in the superintendent search process,” he said. “I don’t think it’s a school board meeting.”

The Guilderland School Board has nine members. If five or more meet, the Open Meetings Law requires that the session be announced, and be open to the public unless one of eight grounds specified in the law is met, allowing a closed, executive session.

The Enterprise then asked Weisz if a quorum would be present on Tuesday night.

“I do not know,” he said, adding, “It’s currently scheduled. Whether it’s going to happen or not, who’s going to show up, I do not know.”

“Discretion being the better part of valor, if he doesn’t know, that means that notice should be given,” Robert Freeman told The Enterprise when asked if notice of the meeting were required. Freeman is the long-time executive director of the state’s Committee on Open Government. “If less than a quorum shows up, so be it — then the Open Meetings Law doesn’t apply,” he said.

Not a public meeting of the board?

When the Enterprise reporter asked Weisz, if she showed up, would she be thrown out, Weisz said, “We would never throw you out. It’s just not a public meeting of the board.”

Asked to explain why it is not a public meeting and which of the eight grounds applied, Weisz said, “I will let the board determine whether or not they think it applies. I mean, it’s not my call. I’m just one of nine.”

Pressed further, Weisz, who is a lawyer, said, “My understanding is, at the meeting, we’re going to discuss all the personalities and all the people who work in the district to help inform BOCES as to how we go about our search. So we’re going to be discussing the personnel of the senior management of the school district to help inform BOCES so they can help inform us as to how we go about with the search. That was my understanding. That’s why it was subject to executive privilege because we’re naming specific people….

“We would be dealing with particular personnel issues involving particular people and how and what the needs of the district might be in dealing in a superintendent search.”

He also said, “If the board wants to do something different, if it wants to have a general discussion, about the parameters of what we’re going to be looking for in general and not talking about…specific people, then maybe that wouldn’t apply. But right now I’m as equally confused as you are.”

Freeman over the years has frequently pointed out that “personnel” does not appear in the Open Meetings Law, although elected officials often cite it as if it did.

The grounds that Weisz were referring to is this: The law allows an elected board to adjourn to 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.”

Freeman said on Tuesday that exception wouldn’t apply to the planned Guilderland meeting.

Discussing personalities of school administrators is not employment history, as specified by the law, he said. “‘So-and-so is good with people.’ Is that a matter leading to appointment, employment, promotion?” he asked, citing the law. “No, it’s not,” he answered himself.

“Why is the board afraid of discussing its process in public?” he asked.

Freeman went on, “We should take a look at the language and read it and interpret it literally because that’s what we’re supposed to do. That’s number one. Number two, the courts have said, in numerous contexts, that the exceptions to openness are supposed to be construed narrowly. So, if there is a question, it seems to me we err on the side of openness.”

Freeman also said that it was conceivable that the board, in the course of discussion with its BOCES consultants, might get into something that would trigger the application of this exception but, he concluded, “Unless and until that happens, you have to discuss the issues in public.”

“Not enough people”

Weisz called The Enterprise on Tuesday evening to say the planned meeting had been cancelled because “not enough people” would be coming.

He said the board would “come up with a new date to do the public [session] and then, if people want to do the executive [session], we’ll break into executive.”

Asked if the next meeting would be the regularly scheduled school board meeting on Feb. 9, Weisz said, “I have absolutely no idea.”

He explained, “We’re waiting to get dates from BOCES to see when they’re available, and I’m not sure whether we’re going to do a date before then or not, depending on availability of people.

He concluded, “I think there were those of us who understood what the requirements of the executive session were [and] thought that there was enough there to justify the meeting…Other people decided they didn’t want to have two meetings.”

History

A crowd of more than 300 chanted “Shame! Shame! Shame!” as Guilderland School board members quietly filed out of a school meeting hall in the summer of 2008 to talk in closed session.

Citizens were clearly frustrated that night when Weisz told them they couldn’t speak in public about two teachers they wanted to defend; the teachers were fighting their transfer from the high school to the middle school.

As protests continued throughout that summer, Weisz bore the brunt of public criticism for not allowing the public to speak about the teachers at the packed meetings.

“Unfortunately,” he said at the time, “people are not willing to give institutions the benefit of the doubt while they let processes work out. It’s disappointing when people confuse adhering to rules and process with rejecting viewpoints.”

Weisz told the crowd at the first packed meeting, “If you refer to someone by name, we take that in executive session…I’m supposed to gavel you if you talk about a personnel item.”

“They ought to know they don’t have to go into executive session,” Freeman said at the time. “They had the right to discuss the entirety of the issue in public,” he said.

“It’s part of the ‘Personnel Myth’,” Freeman said, adding that, if people repeat things enough times, they come to believe it is true. “It drives me crazy,” he said.

Freeman went on, “The law says a board may enter executive session. The board is absolutely free to discuss the issue in public.”

Weisz said the Guilderland board has made its own rules, as allowed by law.

“We did want information,” he said. “Our rules are, we can’t take personnel information in public.” The board met in private with those who wanted to talk to it about the teachers.

Weisz explained the reason for the rule: “No one knows what someone stepping up to a microphone will say. It could be true or false, positive or negative.”

He went on, “The rules are designed to protect everybody….I don’t know what we could have done differently without breaking our own rules.”

The state’s Open Meeting Law says nothing about the public having the right to speak at meetings. The law states that the public has the right to attend, observe, and listen to an elected board. A board can adopt its own rules about allowing the public to speak.

The Guilderland School Board allows public comment at the beginning and end of every meeting and does not allow comment on named individuals.

Several years ago, when there were allegations about a coach calling her players “sluts,” the board allowed public comment in favor of the coach and then learned it should also allow comment critical of her.

Freeman said then that, according to federal case law, “If praiseworthy comments regarding staff are permitted, the board must also permit critical comments. It’s their choice.”

While the school board is not in violation of the law with its rule forbidding public comment on particular individuals, that is a different matter than a decision for the board to meet secretly in closed session.

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. The law also specifies just eight grounds that allow a public board to meet in private. If the topic does not fit one of those grounds, the meeting is illegal.