The Echo

I don't have time for this blogging thing anymore. While I like to read blogs, I seldom visit my own. It's not that I have run out of ideas, it's that I have run out of time.  Most days, I haven't a minute to give to a blog as I promised my almost every free moment to my children and husband when I retired my board service.  Not that there are many as I replaced boardsmanship with paid employment.  As I write this my nine-year-old is holding a light saber to my throat.

There's been a swift shift in the paradigm thanks to a collection of recent Attorney General FOIA findings.  No one loves FOIA more than I do.  It's the most powerful tool a citizen has.  It's living, breathing democracy at work.

Here we go:

It has been standard practice to conduct the annual evaluation of this state's superintendents in executive session.  Delaware law provides for this. It states that these personal actions can only occur in public session at the request of the personnel.

Notwithstanding contracts themselves - contracts belong in the public domain.

Privacy is something else.

In fact, we love our employment privacy so much, that's its often an employers obligation.  And contractual.  The boilerplate contract that governs many of our supers in our district contain clauses like this one:

"The evaluation of the Superintendent shall at all times be conducted in closed session, and the evaluation and information concerning the evaluation, of whatever nature, shalle be considered confidential as provided by law."

The time debate the clause occurred three years ago.  When the clause was consistent with the law. In fact, it's still consistent with the law. It's not consistent with the latest opinion of the Attorney General And that's the dichotomy.

So, what happens when the A.G. opinion contravenes the existing laws that govern employment practices?  Furthermore, how does a public body respond when that contravention extends to contracts that when authored were consistent with prevailing labor law?

I don't know.  But, I see a lot of wordsmything going on, especially in the posting for the upcoming BOE meeting.  For example:

B. PERSONNEL MATTERS 1. Personnel Matters Include a Discussion of the Superintendent’s Competencies and Abilities [See 29 Del C 10004 (b)(9)]  (from the BOE Posting)

These words are divergent from past years.  So why? Well, if you've been following the drama unfolding at Kilroys and Execeptional Delaware, these words should sound familiar. They originate in the AG's APPO Opinion:

While it is true that FOIA permits a public body to discuss personnel matters in executive session, “a public body must establish that the private discussion directly involved the consideration of an individual employee’s competency and abilities.” Del. Op. Att’y Gen. 13-IB01, 2013 WL 2477025, at *17 (Mar. 26, 2013)

 Moreover, we have previously determined that a superintendent is not the “typical employee with potentially legitimate privacy concerns about his work performance” and that the public has a substantial interest in a superintendent’s job performance. Id., at *18. 

we find that members of the public were entitled to monitor and observe the Board member’s discussion of the renewal of Mr. Burrow’s Contract, even if a portion of that discussion touched on his competency and abilities as superintendent. Id.