Update: Gov. Jared Polis signed HB 22-1110 into law on Monday, Apr. 4.
By Jeffrey A. Roberts
CFOIC Executive Director
Responding in part to a recent court ruling in Larimer County, state lawmakers want to add an exception to Colorado’s Sunshine Law that lets school board members meet behind closed doors to interview superintendent finalists, rank them, and instruct staff to begin contract negotiations with one or more.
The new executive session authorization, approved Wednesday by the House Education Committee, would be permitted only if a school board names multiple finalists and lets the public interview the candidates at an open forum.
“We believe this process is a value add for school districts that wish to name more than one finalist,” said Rep. Andrew Boesenecker, D-Fort Collins, who introduced House Bill 22-1110 with Rep. Mary Bradfield, R-Colorado Springs. “It also provides essential clarity that is lacking in statute at present.”
The Colorado Open Meetings Law, aka the Sunshine Law, currently lets school boards and other public bodies meet in executive session to deliberate on “personnel matters” and negotiation strategies, in addition to certain other topics.
It’s not clear whether the personnel matters authorization only permits private discussions of “current personnel or whether potential employees and applicants are included in that,” said Sam Jones-Rogers, director of legal services for the Colorado Association of School Boards. “This is what the bill would be clarifying.”
Both the open meetings law and a separate statute on school board meetings also prohibit decision-making in executive sessions. “While in executive session,” the Colorado Supreme Court wrote in a 2007 ruling, “the members may discuss policies, but they are limited in their policy making authority and may not adopt positions or make formal decisions.”
Larimer County District Court Judge Gregory Lammons cited that high-court ruling last month in concluding that the Poudre School District board of education violated the Sunshine Law in April 2021 when it “essentially voted” in executive session to hire Brian Kingsley as superintendent. Lammons ordered the public release of portions of the executive session recording.
“We believe we were in compliance with current provisions of executive sessions law, particularly around the negotiations and personnel subsections, yet we were sued and the judge determined that our discussion of the finalists in executive session should have been made public,” said Robert Patterson, president of the Poudre school board.
“So this is not a hypothetical problem that this bill is trying to solve,” Patterson told members of the education committee.
Under HB 22-1110, prioritizing finalists and beginning negotiations with one or more finalists would not constitute “formal action or adoption by the board. Such formal action occurs only when the board comes into public session and casts votes on their preferred next chief executive officer. No formal adoption is deemed to have taken place until a public vote has occurred.”
“This bill only applies to situations where a district chooses to name multiple finalists” and solicits public input on those finalists, Boesenecker said. Although a school board could choose to name just one finalist, “it is our belief that bringing forward multiple finalists, should a board decide to do so, offers the possibility of a more robust process for public engagement and an increased opportunity to engage a diversity of candidates.”
In 2021, the legislature passed a bill that explicitly permits public bodies in Colorado to name just one finalist for chief executive positions such as school superintendent, university president and city manager. Gov. Jared Polis let House Bill 21-1051 become law without his signature, advising government bodies to release the names of several finalists as “a best practice.”
Also last year, the Colorado Supreme Court declined to review the Colorado Court of Appeals’ reversal of a ruling against the University of Colorado regents for refusing to disclose the names and applications of all six candidates interviewed for the president’s job that went to Mark Kennedy in 2019.
Supporters of this year’s bill implied that an entirely open selection process makes it difficult for school boards to recruit the best superintendent candidates.
“Executive recruiters state that so often the candidates are reluctant to answer the difficult and sensitive questions or have their merits or demerits discussed publicly,” Bradfield said. “And the concern is that these highly personal subjects, they feel, will hurt them in a future job search.”
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