By Jeffrey A. Roberts
CFOIC Executive Director
In a case similar to the Boulder Daily Camera’s lawsuit against the University of Colorado regents, an El Paso County District Court judge will soon decide whether Colorado’s open government laws require a school board to name more than one finalist when choosing a new superintendent.
As the lawyers for Academy District 20 point out in a recent brief, a Denver District Court judge’s March ruling against the regents for naming a sole CU presidency finalist has no legal bearing on parent Melanie Knapp’s lawsuit against the school board.
But it will be interesting to see whether a second judge also interprets the Colorado Open Records Act and the Colorado Open Meetings Law to mean that governments must disclose the names and applications of multiple finalists for a chief executive officer position – if more than one person is qualified for the job.
The open meetings law, aka the Sunshine Law, requires public bodies to make public “the list of all finalists” under consideration for a chief executive officer position at least 14 days before an appointment is made. CORA requires the disclosure of finalists’ applications, except for letters of reference and medical data, and it defines “finalist” to mean an applicant for a chief executive officer position “who is a member of the final group of applicants or candidates” made public under the Sunshine Law. If only three or fewer applicants possess the minimum qualifications for the position, they should be considered finalists, according to CORA.
Naming just one finalist “contravenes the very purpose of this portion of the sunshine laws – to provide the public with information so that the public may weigh the relative strengths of the candidates and provide feedback to the (school board) prior to a decision,” wrote Knapps’ attorneys, Eric Maxfield and Robert Gunning, in a brief filed last week.
Knapp sued the Academy District 20 school board in November, claiming it violated the open meetings law by making hiring decisions behind closed doors and failing to properly convene executive sessions. She also alleges the district wrongfully denied her CORA requests for the names and applications of other candidates seriously considered for the superintendent’s job during two selection processes in 2019.
The board last spring named Kimberly Hough as the lone finalist. After she withdrew from consideration, it named another sole finalist, Thomas Gregory, who accepted the position.
At least 26 people applied for the superintendent’s position, and the board interviewed five candidates during each hiring process, according to court documents. “This was the final round of competition. These 5 individuals were ‘finalists’ as that term is commonly understood,” Knapp’s lawyers contend, noting that the board president called them “five very fine and capable candidates.”
Maxfield and Gunning also represent the Daily Camera, and their arguments on behalf of Knapp mirror the arguments they presented in the newspaper’s case. Under the plain language of the statutes, they say, “where there is more than one qualified candidate, there will be multiple finalists.”
Laying out the legislative history of the laws, the lawyers argue: “The plainly intended result is that there must be an opportunity to compare the relative merits of the finalist candidates, to have the opportunity to provide feedback on the candidates’ relative merits, and to observe and hold the elected officials accountable for their decision-making.”
In ruling the CU regents violated CORA by refusing to provide the Daily Camera with the names and applications of other finalists, Judge A. Bruce Jones wrote: “The General Assembly’s use of the plural form of ‘finalist’ reinforces its intent. Common sense, not linguistic gymnastics, must be employed in interpreting statutes.”
It is reasonable to conclude, the judge added, “the legislature intended that states universities publicly disclose the records of more than one finalist when more than three candidates meet the minimum qualifications.”
The regents voted 5-4 to appeal Jones’ decision but recently released the applications of five finalists, including the person chosen for the job – Mark Kennedy. Their names were among those disclosed in a list leaked to The Colorado Independent late last year.
Attorneys for Academy District 20 disagreed with Jones’ ruling in their recent court filing: “The Denver Court Order is internally inconsistent. It wrongfully tries to reductively reason to the outcome desired by adding words and information not provided in the statutes.”
CORA and the open meetings law “provide no mandate that the public weigh in on the candidate or candidates that the Board chooses to disclose for an executive position,” the district’s lawyers wrote. “The only requirement is that the individual or individuals under consideration for appointment or employment be made public fourteen days before hire.
“… If the Board decides that one individual best fits the needs of the school (district) and is the only candidate under consideration for employment, then that is the only person required to be publicly disclosed.”
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