Saturday, November 20, 2010

UPDATED: Does the secret meeting of Steiner's waiver committee violate the state Open Meetings law?

The Times points out today that three members out of the eight appointed to a panel to advise Commissioner Steiner on whether to grant a waiver to Cathie Black to become NYC Schools Chancellor used to work for the DOE under Klein; several more are at institutions that receive city funds and/or have benefited from Bloomberg's personal largesse.

Even more troubling, the panel will meet in secret on Tuesday, showing that the rushed and closed process that has marred Black's selection from the beginning continues unabated.

Yet the meeting of this committee may be subject to the NY State Open Meetings law. See here, from the
NY Dept. of State FAQ on the law:

Who is covered by the Law?
The Open Meetings Law applies to "public bodies." That term is defined to include entities consisting of two or more people that conduct public business and perform a governmental function for New York State, for an agency of the state, or for public corporations, such as cities, counties, towns, villages and school districts. Committees and subcommittees of these entities are also included within the definition. Consequently, city councils, town boards, village boards of trustees, school boards, commissions, legislative bodies, and committees and subcommittees consisting of members of those groups all fall within the framework of the Law.

Since this committee is conducting both public business and a governmental function for the State Education Department, which is a state agency, the intent of the law seems clear that its meetings should be open to the public. This is especially the case since the appointing of such an advisory body is not discretionary on Steiner's part, but mandated according to the state regulations concerning the granting of any waiver:
Section 80-3.10.* Certificates for the educational leadership service.
(b) (iii) Alternative route two, the certification of exceptionally qualified persons through screening panel review. The Commissioner of Education, at the request of a board of education or board of cooperative educational services, may provide for the issuance of a professional certificate as a school district leader (superintendent of schools) to exceptionally qualified persons who do not meet all of the graduate course or school teaching requirements in subparagraph (i) of this paragraph, but whose exceptional training and experience are the substantial equivalent of such requirements and qualify such persons for duties of a superintendent of schools.

Prior to the appointment of any such individual, the board must obtain the approval of the commissioner. In its formal request to the department the board must submit its resolution noting approval of the request, the job description, its rationale for requesting such certification of the individual, a statement identifying the exceptional qualifications of the candidate, the individual's completed application for certification, vitae and official transcripts of collegiate study. The certificate, if issued, will be valid only for service in the district making the request. The commissioner will refer the materials submitted by the board to a screening panel consisting of representatives of the department and appropriate educational organizations for review and advice.

What do you think? Should this committee meet in private? Leave a comment!


UPDATE: Over the weekend I emailed Robert Freeman of the NY Dept. of State, the expert on the open meetings law. Below is his response; it seems that holding this meeting in private does not violate the law; whether it is optimal as a matter of public policy is another question. Meanwhile, additional questions have arisen concerning potential conflicts of interest among the panelists, see today's Times here.
__________________________

From: Freeman, Robert (DOS) [mailto:Robert.Freeman@dos.state.ny.us]
Sent: Monday, November 22, 2010 8:41 AM
To: Leonie Haimson
Subject: RE: question re open meetings law and SED screening panel

Judicial decisions indicate that an advisory body as described in the article does not constitute a “public body” and, therefore, is not subject to the Open Meetings Law. Even if the Open Meetings Law applied, the group could discuss the matter during an executive session under 105(1)(f) of that statute. The cited provision permits a public body to conduct a closed 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 or a particular person or corporation.”

I hope that the foregoing serves to clarify your understanding and that I have been of assistance.


13 comments:

Andrew Wolf said...

Generally personnel matters are not covered by the open meetings law. For instance, if there was an employee being brought up on charges, such a meeting could be held in executive session. However, I think a good lawyer could overcome this. Maybe the same guy that prevented the 19 schools from being closed last year?

Thomas W. Carroll said...

I am not weighing in on the broader issues raised by your post, but just on the Open Meetings Law question. The selective quoting of the Open Meetings Law leaves out the explicit exemption for discussion of personnel matters. With a regular school board outside of NYC, it is routine for school boards to go into executive session for a personnel discussion and then come out of executive session for any required votes. This is often done in the case of the selection of a school superintendent, where the discussion is private and the vote to appoint is public.

Thomas W. Carroll said...

I am not weighing in on the broader issues raised by your post, but just on the Open Meetings Law question. The selective quoting of the Open Meetings Law leaves out the explicit exemption for discussion of personnel matters. With a regular school board outside of NYC, it is routine for school boards to go into executive session for a personnel discussion and then come out of executive session for any required votes. This is often done in the case of the selection of a school superintendent, where the discussion is private and the vote to appoint is public.

Anonymous said...

From ‘Gothamist’:

“But Bloomberg sent the panel a warning, saying that if they didn’t appoint Black they will literally not be able to find anyone else to do the job. Anywhere. Forever. He asked, “How would you get somebody else? I don’t know what you’d do if you didn’t [get the waiver]…I don’t know why anybody would come if you didn’t do this.” Yes, why would any educator apply now that they know Bloomberg is looking for business moguls?”

The business of corruption.

Hon. Chris Owens said...

As a former member of Community School Board 13 (Brooklyn), I would dispute the requirement that this meeting be closed per the Open Meetings Law's exemptions regarding personnel matters.

Any content pertaining to Ms. Black's performance reviews and any complaints against her by past employees WOULD be subject to such a restriction.

Any basic discussion of her knowledge of education as a professional and the application of her past work to her proposed position, however, would require no more protection than a hearing on a Supreme Court nominee or Cabinet member.

That being said, I am neither surprised nor troubled by the meeting being closed. The time for open meetings was prior to the Mayor's nomination, when multiple finalists could be heard from.

I am, however, very troubled by the composition of the advisory group AND the fact that there is no evidence that neither Mayor Bloomberg, Joel Klein nor Cathie Black have already conversed with any of the members of this group.

If any of the advisory groups HAVE spoken with one of the three (or a representative thereof), then they should take themselves off of this group.

NYCPubSchooler said...

@ Mr. Wolf and Mr. Owens: Personnel matters are indeed one reason to motion for a closed executive session. BUT, that motion must be made at an open public meeting. Also, the Committee on Open Government warns that "Citing 'personnel matters' is not a sufficient ground for going into an executive session."

Anonymous said...

Do not turn our children's
world Black!
How could a person make a
decision about a classroom
and not know directly and
first hand about the implications and impact
it will have?
This secret meeting sounds
like something the mafia would do.
Yes, it is illegal but we live in
America. America is about breaking
the law to suit your own need.
Especially, by politicians, the rich
and by people in power.

agalabouttown said...

Someone should get a ruling on this. And from a federal lawyer, not one from NY. Since Ms. Black is not "personnel" yet, it does not seem appropriate. My understanding is that executive session is for sensative personnel issues like possible disciplinary action being brought against board members. Also it requires a motion at a public meeting.

CitizensSupportingBloombergsCorruption said...

Someone has said that
"A well informed citizenry is essential for a democracy"


Well informed? Ha!

Public Education? Ha!

Democracy? Ha!


Only we of the ultra-wealthy elite know best. Nobody does it better!

Let's send the ill mannered idiots to kill South American Unionists.

And as a reward teach the fools how to have great sex safely!!

Let's go Black and we'll never turn back!!

Room 229 said...

Our Mayor constantly uses his money and influence to manipulate situations in his favor. In fact, it is the hallmark of his reign. This happened with overturning term limits, this happens with a stacked PEP membership and now this faux panel assembled to feign thoughtful discussion about Cathie Black. Many nonprofit organizations throughout the city rely on his donations and they are unable to support those of us fighting against the catastrophe that is mayoral control and and privitization of education. There is not a law or rule he does not overturn or overlook to suit his agenda. Regulations about class sizes and special education laws are mere suggestions to this man. Why anyone thinks a state law would apply to this situation or any other is beyond me.

Anonymous said...

Does anyone REALLY think that any objections or any motions or anything at all matters or can stop this appointment? Bloombergs money has bought everything he has wanted along the way: initial election, overturning of term limits, Joel Klein's waiver etc. Doesn't anyone realize he'll buy this too? And now to make matters worse than they already were, not only will we have a millionaire mayor, but a millionaire chancellor who never even attended public school. Education is no place for millionaires, and neither is politics. Just when we thought things couldn't get any worse.......

helenth01 said...

Every dark night is followed by a bright sunny day. So, patience and attention is required and things will be fruitful in near future.
======================
Injury Lawyer

worldprotection said...

The World Protection Group, Inc. ® ensures the safety of the VIP's. we are specialized in Executive Protection, Corporate Security, body guard services, consulting services, family & estate protection, armored cars etc. Executive Protection