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Thoughts on evaluating a school superintendent Jeff Dieffenbach Chair, Wayland School Committee 6 June 2005: Written remarks read at beginning of School Committee evaluation discussion There is a contradiction between Public Records Law, which provides that personnel evaluations are not public documents (and can be discussed in executive session), and the Open Meeting Law, which states that professional competence (but not explicitly personnel evaluations) discussions and associated materials must be discussed by a committee in open meeting. The Middlesex District Attorney has held that the Open Meeting Law supercedes the Public Records Law in this area. Our attorney disagrees. Should the District Attorney rule that either law has been violated, they may order a committee to make public any minutes and/or documents resulting from a closed session. The committee would then have to choices: to make the materials public or not. If the committee elected not to make the documents public, the District Attorney can only compel them to be provided by filing a civil or criminal suit against the committee. If the trial judge rules in favor of the committee, the documents would not have to be disclosed. If the trial judge rules in favor of the District Attorney, the committee could either provide the materials or appeal (by right) to the appellate court. The District Attorney or the committee could appeal the appellate court’s ruling to the Supreme Judicial Court, but the SJC would have to agree to hear the case; otherwise, the appellate court’s ruling would stand. The most likely outcome of the committee losing the case at any level is the legal cost plus having to provide the documents. A financial penalty is unlikely. The main issue is whether the committee has any interest in being part of a test case of sorts. Why would a school committee wish to keep a superintendent’s evaluation private? Two primary reasons: 1. The prospect of a superintendent’s evaluation being public may influence in a detrimental way the comments that school committee members make. The result might well end up being the weakening of the evaluation as a tool to provide constructive feedback to the superintendent with the objective of improving the school system. 2. There is sometimes a tendency to exaggerate the importance of a relatively small number of tactical areas for improvement without acknowledging a relatively larger number of strategic successes. Regarding the Wayland Public School Superintendent’s 2004-2005 evaluation, we have followed a process recommended by our attorney: A. The Chair asks current and former School Committee members to comment in writing on the Superintendent’s performance, including but not limited to his progress towards achieving his written goals. B. The Chair incorporates those comments into an evaluation. C. The Chair distributes that evaluation to the members for review but not discussion. This is where we currently stand. Per our attorney’s recommendation, we had planned to continue as follows: D. The members discuss the evaluation in executive session (per Public Records Law). E. The Chair incorporates agreed upon changes. F. The Chair submits the evaluation to the Superintendent. G. The Superintendent invites the Chair and one other member to a meeting to discuss the evaluation. Given where we are in the process, we have four options: I. We could have the evaluation discussion in open session tonight or at a future meeting, understanding that the evaluation would become public as a result. A majority vote in favor of discussing the evaluation in open session would indicate that we wish to pursue this option. II. We could have the evaluation discussion in executive session tonight or at a future meeting, understanding that an order from the District Attorney would likely result, and that there is little point in moving in this direction unless we wished to pursue the matter at the trial, appellate, and perhaps SJC levels. A majority vote in favor of a motion to enter executive session for the purpose of discussing personnel matters would indicate that we wish to pursue this second option. III. We could immediately alter our evaluation process such that I submit the current version of the evaluation, written by me but not discussed as a committee, to the Superintendent. I would then meet with the Superintendent to discuss the document. The Superintendent’s evaluation would not be subject to Open Meeting Law, and would therefore be protected by Public Records Law. No majority vote in favor of the prior two options would indicate that we wish to pursue this third option. IV. We could defer a decision to a later date. I would like to remind the committee that we have two somewhat competing forces at work: (1) adhering to the law as interpreted by the courts in our particular circumstances and (2) acting in the best interests of the operatio of our public schools in consideration of the best interests of the town. Note: the committee elected to defer a decision to a later date (6/22/2005); at that time, the committee voted to conduct the evaluation in open session, and then proceeded to conduct the evaluation. 28 June 2005: Private email to Philip Maddocks of the Natick Bulletin & Tab Dear Mr. Maddocks, I read with some interest your editorial in the June 24, 2005 Natick Bulletin & Tab. It is unfortunate that we did not speak in advance of your effort, as I could have provided you with additional information that might have been useful to you. First and foremost, the Wayland School Committee voted 3-2 on June 22, 2005 (two days before your piece) to conduct its 2004-2005 superintendent evaluation in open session. The "deviance" that you pre-assigned to us did not in fact materialize. Second, the two members--myself included--who voted against the open session discussion did not vote in favor of a closed session. Rather, we favored the legal approach used in many towns that has the chair soliciting written input from individual members and creating an aggregate document to review with the superintendent. Third, the executive session process that we used last year was conducted based on advice from our attorney. The employment agreement clause to that effect was part of that same advice, taking in to account the Public Records Law. While you cited the Open Meeting Law, you omitted any mention of the Public Records Law, which explicitly states that personnel evaluations are not public documents. So, by performing the evaluation in executive session as we did this year, it would appear that we may have violated the Public Records Law. Ideally, a court will rule at some point and resolve the conflict between the two laws. Fourth, I assume that you are not arguing that all governmental deliberation be conducted in open session. Negotiation strategy sessions, for instance, would seem to best be held in executive session. The question, then, would appear to be a matter of where the line is drawn. It is a fair (but by no means overwhelming) argument, I think, that a school district's interests might best be served by evaluating its superintendent in closed session while still carrying out the vast majority of its work (policy setting, budget preparation, etc.) in open session. Your mention of Mark Felt provides an interesting juxtaposition. On the one hand, you argue that the taxpayer be entitled to essentially unfettered access. Yet on the other hand, I'm sure that you (rightly) hold quite dear the ability to protect your sources, including from your own stockholders. Granted, the two situations have many differences, but the notion that human beings will alter their discourse--particularly when its subject is another human being--based on the audience at hand has relevance to both. Over the course of two meetings, the Wayland School Committee held a frank and open discussion about the pros and cons of different approaches to evaluating our excellent superintendent. In the second of those two meetings, we performed that evaluation in open session. It's unfortunate that you were unable to attend; your faith in the public process might have been somewhat restored. If you have any questions or comments, please do not hesitate to contact me. Sincerely, Jeff Dieffenbach Chair, Wayland School Committee |
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