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July 31, 2006


Deputy 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 confidential."

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  “for the 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 discussed."

Tupman ruled 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 ruled.

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 would happen.

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 the law.

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 Scanlon's selection.

© 2006. All rights reserved.

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Read previous Delaforum article: School board picks ‘finalist’ for superintendent job
Read previous Delaforum article: Target date set for hiring new superintendent

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