The Española School Board has claimed transparency will be the hallmark of its superintendent hiring process. So far, the Board has gone as far as skirting state open meetings and public records laws to keep the process under wraps.
The Board may have violated the state Open Meetings Act during a Nov. 1 closed-door meeting where it discussed the superintendent search process and other topics it is required to discuss publicly, according to an agenda of the meeting viewed by the SUN.
An agenda of the meeting distributed to the public stated the Board would meet in closed session to evaluate Superintendent David Cockerham and discuss a land transaction. Once behind closed doors, the Board followed a separate, different agenda listing six separate items, which had been kept from the public until Tuesday.
The District also plans to keep secret the identities of all but a handful of applicants for the superintendent’s seat, citing a confidentiality law that extends only to colleges and universities.
“They’re playing games,” New Mexico Foundation for Open Government Director Leonard DeLayo said. “They clearly have a different notion of transparency than you and I do.”
Closed-Door Meeting
The Board met Nov. 1, a Saturday, at the offices of the Cuddy Law Firm in Santa Fe for a seven-hour, closed-door session saying it would evaluate Cockerham and discuss a land transaction. The Act allows the Board to discuss both topics in private.
The Board’s private agenda for the meeting included items such as “(District) policies,” “sample superintendent application and process” and “draft of proposed goals for superintendent.” Notes scribbled in ink include the words “bond issue,” “9th grade academy” and reference to a staff disciplinary incident.
The Open Meetings Act requires the Board to conduct all its business in public save for few exceptions. The Act lists only the last of those agenda items as an exception.
Shortly after the Nov. 1 meeting, a signed letter from Board President Joe Romero invited the public to three community hearings about the superintendent search and unveiled a survey available in District schools and on its web site. Romero said the Board did not discuss “any specifics” about the superintendent search at the Nov. 1 meeting, but could not recall when plans for the hearings and the survey were developed.
“We’ve been discussing that for so hard, for so long, it’s hard to keep track,” Romero said.
The hearing and the survey were never discussed in a public meeting, and the Board has provided no explanation for when it developed those plans.
At the Nov. 1 meeting, the Board gave Cockerham a list of goals, which Romero agreed to make public Tuesday night. The list directed Cockerham to plan for moving administrative offices to the former Española seventh-grade school, develop five separate policies, revise the District’s budget and create a public relations program.
The state Open Meetings Act clearing prohibits this type of discussion by a quorum of the Board behind closed doors.
“The formation of public policy … shall not be conducted in closed meetings,” the Act states.
An Open Meetings Act Compliance Guide published by the state Attorney General defines that to include “deliberations” and “discussing public business” in general.
Board members argued that, because Cockerham will eventually be evaluated on those items, the discussion counts as part of his evaluation, and was therefore confidential.
The Act allows evaluations to be discussed in secret to protect the person being evaluated from “matters of opinion” — Board members’ subjective statements about Cockerham’s performance. Instead, the Board gave Cockerham instructions to make certain changes in the District — essentially a policy-making action that by law should be conducted in public, DeLayo said.
“Those goals, they’re not something personal to the superintendent, it’s a policy matter that affects the whole district,” DeLayo said.
Romero denied the Board discussed policies at all at the Nov. 1 meeting.
“If anything else was discussed, it was small talk — sports, the weather,” Romero said. “My feeling is that we should discuss as much as possible publicly, even if it’s a gray area. Only what we absolutely can’t, we shouldn’t discuss.”
But three other members — Secretary Joann Salazar, Vice President Floyd Archuleta and member Leonard Valerio — said they recalled discussing District overtime policies at the meeting, if only briefly and in the context of Cockerham’s evaluation.
The Attorney General’s guide emphasizes that evaluations cannot be used as an excuse to discuss policy in private.
“A public policymaking body may not retreat into executive session to discuss personnel policies, procedures, budget items, and other issues not concerning the qualifications or performance of specific individuals,” the guide states.
Salazar and Romero later agreed to disclose the directives given to Cockerham at the meeting.
The Act gives the Board two ways to address an open meetings violation: either make public everything it discussed in the closed session that it shouldn’t have, or else face penalties.
“I went in there with the best intentions, and specifically to evaluate the superintendent,” Valerio said. “If we did discuss anything we shouldn’t have, I think the Board will agree, we should make them part of the public record.”
Whether through prosecution from the state Attorney General’s office or through a civil lawsuit, Board members can be held responsible for the violation and potentially each charged with a misdemeanor. The Board as a whole could face fines of up to $500 plus attorney and court fees if found guilty of violating the Act.
Secret Applicants
The District plans to keep secret the identity of all but a handful of applicants for the job, Cockerham said. He cited a confidentiality clause in the state Inspection of Public Records Act that applies only to colleges and universities.
A draft application Cockerham presented to the Board asks candidates, “Do you want this application and all associated documents to remain confidential to the extent allowed by New Mexico law?” The document goes on to state that state law allows records to remain confidential until the applicant becomes a finalist for the position. It defines “finalist” as an applicant who is chosen for an interview or is still being considered for the position 21 days prior to hiring.
“That’s just not true. That’s not the law,” DeLayo said. “There’s no exception (in the Act) that would allow them to deny access to those applications. Period.”
State law offers that confidentiality to applicants for the presidency of public colleges and universities, but not superintendents. The District plans to begin advertising for the superintendent’s position Friday, Cockerham said.
Cockerham argued confidentiality is necessary to protect applicants from losing their jobs if present employers find out they applied with the District.
The city of Farmington made the same argument in early 2007, when it refused to hand over to the Farmington Daily Times newspaper any but finalists’ applications for the city manager’s position. The Daily Times won its suit in state District Court. The city has appealed, and the case awaits a ruling in state Court of Appeals, DeLayo said.