attorney general Michael Tupman found that the
Brandywine school board violated the state Freedom
of Information Act twice in its effort to keep
details of its search for a new superintendent "very
But in his response to a
Delaforum complaint he said one of the violations was
"technical" in nature and the other was, in effect,
subsequently corrected in public view. Neither, he ruled,
requires any further remediation.
He rejected a third
allegation that merely referring in general terms in
minutes of its executive sessions to what happens at
the closed-door sessions violates the law.
Tupman did not deal with a
suggestion that the board may have violated its fiduciary
obligations to taxpayers in apparently agreeing to terminate
former superintendent Bruce Harter's employment contract on
the day he became eligible to receive a state pension.
Before the board revealed its
selection of James Scanlon, superintendent of the Quakertown
(Pa.) Community School District, as the "finalist candidate"
to succeed Harter, board president Craig Gilbert explained
that confidentiality was necessary to obtain a greater
number of qualified applicants. The board, he said, followed
a recommendation by Hazzard, Young &
Attea Associates, the search firm hired to find candidates,
in that regard.
Gilbert said a majority of
responders to a survey on the district website approved of
conducting a confidential search.
Delaforum's complaint to the
attorney general was filed on May 26 and referred to
executive sessions the board held on May 8 and May 10.
Tupman's response addressed only the May 8 meeting, but the
other one presumably was similar in its content. The board
subsequently conducted interviews with four or more
applicants that Hazzard, Young & Attea brought forth.
The posted notice of the May
8 meeting said it would be held
purpose of discussing … personnel matters.” It gave no
details of what those matters would be. The Freedom of
Information Act permits closed sessions where "competency
and abilities of individual employees or students are
that since the qualifications of job applicants were to be
discussed, that also should have been included in the
notice. But he agreed with Ellen Cooper, the district's
lawyer, that the "violation was technical." Since another
part of the law shields discussion of job applicants'
qualifications, the discussion itself was fully in
compliance and the violation did not merit sanction, Tupman
Based on sworn
affidavits by school board members who attended the
session and an advance copy of minutes not yet formally
approved by the board, Tupman found that the board was wrong
in also discussing the selection process with Sam Mikaelian
and Deborah Raizes, of
Hazzard, Young & Attea,
"desired qualifications for a new superintendent" and
"mechanics of the selection process." At that point, he
said, the board should have returned to public session.
He did not speak to the
unliklihood of any member of the general public being
present for that session, had it happened, since the notice
of the meeting did not include anything to indicate that it
In any event, he did conclude
that no remediation is required "because the board did not
take any action on these matters and reserved substantive
discussion for future meetings."
As Delaforum previously
reported, the board at its regular open business meeting on
May 22 'announced' a timetable for meetings to discuss
desired qualifications for a superintendent and for other
steps in the process of interviewing candidates, "narrowing
the field to several finalists and finally choosing a final
candidate." That information was contained in a circular
prepared beforehand and available at the beginning of the
meeting. Other than referring to contents of the circular,
there was no board discussion, substantive or otherwise,
about the matter.
In rejecting a claim that
merely referring in a general way to having discussed
personnel matters or pending litigation -- as is the
practice of the Brandywine board -- is not adequate
information concerning what happens in executive sessions,
Tupman ruled that it "satisfies the minimum requirements" of
He said in a footnote in his
11-page opinion that the question of the board's fiduciary
responsibility "is beyond the scope of the Freedom of
Information Act." He did not answer Delaforum's request for
guidance abut how that issue could be properly raised either
in the opinion or during an earlier telephone conversation.
Tupman's opinion was dated
and mailed on July 24, the day on which the board disclosed