Portland Public Schools intends to have a consultant serve as an intermediary between a superintendent hiring advisory committee and the district.
That move will conceal applicants for the superintendent’s job. It's the latest attempt by PPS to involve the public and protect the confidentiality of superintendent applicants, all without violating public meetings law.
But it's not clear if the district's plan actually follows the law.
It's not easy to hire a superintendent. The candidates want things kept private while the public wants to know who's applying. And government agencies — like school districts — have to follow the mandates of state law.
Portland Public Schools is attempting to hire its first permanent superintendent in a decade. Trust in the district is at an all-time low, following revelations of lead in school drinking water, a postponed capital bond measure and other systemic problems, such as a long list of unfilled staff positions.
The ultimate responsibility for all those things sits with the PPS school board. And board members are attempting to solve their two biggest problems simultaneously: hire the best possible superintendent and restore trust among parents and potential voters ahead of an anticipated bond measure vote in May.
But accomplishing both things is proving very difficult for this reason: hiring a superintendent is usually helped by maintaining confidentiality of the applicants; and improving trust in Portland is often accomplished through transparency.
The PPS board aims to thread that needle of transparency and confidentiality by involving the public through a stakeholders' advisory committee that would meet privately. That solution, though, is extremely difficult under Oregon public meetings law.
PPS officials reached out to several community groups a few weeks ago to recruit representatives for the advisory committee. The recruiting email summarized the expectations of the committee.
"The purpose of these interviews is to have internal and external stakeholder group representatives meet the three finalists and give input to the Board for their consideration prior to their selection of the preferred candidate," the email said.
The key phrase is "give input to the Board."
Advisory committees that provide input directly to an elected board, like the Portland school board, are required to follow Oregon public meetings law. They can hold private meetings, called "executive sessions," but decisions — such as final recommendations to the board they're advising — have to be made in a public forum.
Portland's advisory committee is expected to craft evaluations on three semi-finalists, two of whom would not be selected as superintendent.
Committee members have been asked to sign confidentiality agreements, limiting what they can say about the process. But people familiar with how it works suggest the committee would draft a list of "pros and cons" or "strengths and weaknesses" for each of three semi-finalists. That means if the evaluations were made public, two candidates would have their interest in the Portland position made public, without those people actually getting the job.
That could lead to candidates alienating their employers, and is the situation candidates try to avoid by insisting on confidential processes.
PPS is aware of this challenge with Oregon public meetings law, and board members are attempting to solve it by leaning on Hazard, Young, Attea & Associates.
According to an from Portland Public Schools attorney Stephanie Harper, the committee’s final advice won’t have to be made public because it won't be made directly to the board.
"My understanding is that the feedback from the Stakeholder advisory group will be provided through discussion with the consultant," Harper wrote. " document for each candidate interviewed by the Stakeholder advisory group will be prepared by the consultant, provided to the Board and discussed with the Board, and the Board will take that input into account when crafting its next set of interview questions for each of the candidates."
Harper's message attempts to strike its own balance between whether PPS is obligated to follow public meetings law in how the advisory committee process works. Under Oregon law, the legal jargon for an advisory relationship that has to conduct public meetings is a "governing body of a public body."
But Harper said that the stakeholder committee may be something different.
"e think it may be arguable that the way in which the Stakeholder advisory group is structured, it is not a governing body of a public body, nor is it making a recommendation to the public body," Harper said.
That might be news to members of the committee, who were recruited with the promise of providing input "to the board" ("the public body" in legal terms).
Perhaps fittingly, Oregon case law suggests the more the consultant changes the advice from the committee, the less the committee has to follow public meetings law. Conversely, if the committee's advice is not changed by the consultant, past court decisions suggest the committee's work is more subject to public meetings law.
OPB litigated against Portland Public Schools over similar issues involving the superintendent's advisory committee on enrollment and transfer. OPB and PPS . In that settlement PPS agreed, "committees that make recommendations directly to the Board of Education are subject to the Public Meetings Law."
Harper acknowledged OPB's settlement with PPS, as well as the intense public interest in the hiring of a new superintendent, are part of the rationale for committing to giving public notice and allowing members of the media to attend (but not report on) the private meetings.
"ecause of the seriousness of the employment decision being made, the interest in transparency of process, and the interest in maintaining the confidentiality of any identifying information about the candidates (so as to have a strong candidate pool and not jeopardize the current employment of any candidate), and an April 2016 agreement with OPB regarding the public meetings law, PPS is prepared to notice and hold Stakeholder advisory committee meetings in executive session where media is allowed to attend but is directed not to report," Harper said.
The board met last weekend to interview five leading candidates for superintendent. Board members planned to trim that list to three semi-finalists, who would meet with the stakeholder advisory committee later this month.
The board's schedule anticipates naming a preferred finalist - the person likely to be hired - toward the end of the month.
The Portland Tribune has reported that the board now plans to announce their preferred finalist a few days before voting on the person, to improve transparency.
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