Tuesday, June 16, 2015

A Confidential Process

Unexamined Legal Question in Screening Committee Process


Roger Cleveland stopped by the office Monday. Readers may be aware that Dr. Cleveland and I are colleagues at EKU in the College of Education. You may also recall that Roger lost a coin toss to STEAM Academy PTSA President Sharon Mofield Boswell this year, which cost him a seat on Fayette County's Superintendent's Search Screening Committee.

But his visit gave me an opportunity to ask him a question. I asked him if he was informed by Fayette County officials, at the time of his candidacy, that the winner of the election would be asked to sign a confidentiality statement that threatened legal action should the terms be violated.

He said he was not told anything of the sort.

Apparently, that tidbit was sprung on members of the Screening Committee after they were elected. Boswell was surprised by the condition, and wasn't sure how to feel about not being informed of the requirement ahead of time. But Fayette County Teachers Association President Jessica Hiler was not surprised. She had served on the last Screening Committee, and had been asked to sign an agreement at that time - but only after she was elected. She indicated that she could see where someone might be bothered by that.

It has become "fairly routine" in recent years for Kentucky school districts to ask folks to sign nondisclosure agreements during searches. FCPS spokeswoman Lisa Deffendall told KSN&C that Fayette County has had committee members sign such agreements since 1999.

It is a process the Kentucky School Board’s Association strongly endorses. "Our position is that confidentiality is a critical part of the screening committee process. If someone can’t agree to preserving the confidentiality of candidates, he or she would be willingly refusing to participate in one of the crucial aspects of the process," KSBA spokesman Brad Hughes told KSN&C. 

But if the practice is becoming commonplace, it seems only fair to inform potential members in advance. Why not?

In fact, I started wondering what would have happened if a member of the Screening Committee had refused to sign. The district effectively required elected screening committee members to sign a confidentiality agreement as a condition of participating in the process for which they were duly elected under state law. Could FCPS legally throw somebody off the panel for refusing to sign a confidentiality agreement?

Apparently there is no legal foresight available to deal with the possibility.

Deffendall said the district "cannot respond to a hypothetical."

The Office of the Attorney General's spokeswoman Allison Martin said the OAG would not provide a legal opinion on the issue because it could come before them at some future time.

Hughes said, "I’m not aware that anyone has ever raised this as a legal issue...I'm also not aware of anyone ever refusing to do so, so it may never have come up as a legal issue." 

KDE spokeswoman Nancy Rodriguez told KSN&C that KDE has not reviewed it as a legal matter. "The only related legal interpretation [KDE has] seen is OAG 02-006, which speaks to the board’s lack of authority to set the requirements for the teacher representative election. They have not seen anything about the board’s authority to remove an elected member from the screening committee.

But OAG 02-006 also states that "local school boards are required by [KRS § 160.352] to establish rules and procedures governing the committee itself. And Fayette County has a policy that calls for the Board of Education to "[Charge] the committee regarding applicant confidentiality." That would seem to establish the legal possibility of using confidentiality agreements. But it would be a great idea for the district to let candidates for the committee know what will be required of them, in advance.

As for the threat of legal action, Rodriguez asked KDE's legal folks about the line at the bottom of the form that mentioned possible legal action should someone sign the form and then disclose information. She was told "that does not refer to legal action by a local board, but rather it refers to a superintendent candidate possibly taking civil action should information be disclosed." That ought to be made clear to committee members as well. 

The Screening Committee has completed its work and sent seven names to the Board. The Board added one of the folks screened out, back in. That should tell us something. 
 
Everything has been done to keep the process confidential. But names and districts of origin (like Jefferson County) are being bandied about widely. Of course one of the central Kentucky candidates put herself in squarely the spotlight during the interviews for the interim post.

1 comment:

lucaya said...

Excellent article Richard; thank you for what you do.

M Winkler