School board misses out on a lesson

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By Terri Lynn Oldham House 

On Nov. 14, 2019, The SUN urged the Archuleta School District’s (ASD) Board of Education (BOE) to keep the hiring of its next superintendent a public process. 

When a SUN reporter was denied access to public documents listing the qualifications and characteristics desired of the district’s next superintendent, we wrote the following in our editorial that week: 

“You have pivotal work ahead of you in picking the CEO of one of the biggest businesses in this county and the best leader possible for this district. Please don’t attempt to hide what you are doing from the public.

“We believe that transparency in the process of hiring the superintendent is necessary and in the best interests of the school district and the community. Meetings and conversations related to the recruitment and hiring process should be held in the view of the public. 

“The denial of public access contradicts the district’s claims of transparency. We implore the board to comply with the law.

“An effective and competent leader will not shy away from a public process and neither should the board.”

On Jan. 22, 2020, the board held an executive session as part of a special meeting. There was no public vote by the board regarding hiring a superintendent.

Then, on Jan. 28, 2020, the board announced it had selected a new superintendent. Dr. Kym LeBlanc-Esparza was present to sign the contract. 

According to then BOE President Brooks Lindner, the decision to choose LeBlanc-Esparza had been made at the special meeting of the BOE on Jan. 22, 2020, which only consisted of that closed-door executive session.

Colorado Revised Statute 22-32-108 regarding meetings of the BOE states that “all regular and special meetings of the board shall be open to the public,” and while executive sessions are allowed, “the board shall not make final policy decisions while in executive session.”

On Feb. 17 of this year, Sixth Judicial District Chief Judge Jeffrey Wilson ordered that the BOE turn over a portion of the recording from the Jan. 22, 2020, executive session.

The order was in response to a complaint filed on March 5, 2020, by attorney Matt Roane, who sought the in-camera review of two executive session recordings — on Dec. 19, 2019, and Jan. 22, 2020 — related to the naming of superintendent finalists. 

The same order denied the in-camera review of the December 2019 executive session, with the court agreeing that the board was allowed to decide upon finalists in executive session.

“However, a reading of the Colorado Open Records Act, together with the Colorado Open Meetings Act and CRS 22-32-108, leads to a different result as to the decision to choose the finalist who was ultimately selected to be offered the position of superintendent,” the August 2020 order states.

“The Court finds it difficult to find that the selection of a superintendent of schools is not a formal adoption of a policy decision or a formal action. The Court notes that school boards in the state of Colorado are specifically prohibited from making ‘… final policy decisions while in executive session,’” the order states, citing a case in which the Colorado Supreme Court has held that a formal decision to not renew a teacher’s contract is a final policy decision that must be made at a public meeting. “The decision as to who will lead a school district certainly has more policy implications for a school district than the decision to not renew the contract of an individual teacher.”

In that executive session recording, current BOE President Bruce Dryburgh, who was not the president at the time of the recording, noted that they should not discuss what transpired.

“The first thing I wanted to say is all of us swear upon penalty of death we do not discuss what happens in this meeting because that would be really bad,” he said.

The board members also discussed their intention of coming to a consensus and making a decision on a superintendent candidate and voting for a superintendent in that meeting.

After discussing the candidates, the board then ranked the candidates via secret ballot.

On March 9, the BOE voted on a settlement agreement with Roane in the case.

Dryburgh noted he “hated” the almost $20,000 settlement and that the district did what others have done. He called it a “nuisance” lawsuit.

“What we did is what every other school district has done in the state of Colorado and most other states going back as far as I’ve heard,” Dryburgh complained. 

He also claimed it was a stupid law and said it would be hard for other school districts to hire qualified superintendents.

Please note: Not all school districts in the state choose to break the law when selecting superintendents.

One board member suggested that Roane do some of the work “pro bono” and not make so much money off of it. We wonder how much work the school district’s attorney does for ASD for free.

Never did the board apologize for breaking the law. Never did the board acknowledge that what it did was wrong. Instead, it was blamed on a flawed law, even though The SUN had implored the board more than once to follow the law.

The board discussed how ASD could have spent that $20,000 settlement for computers and school supplies. They should have thought of that before they voted in executive session. 

The BOE’s actions are what cost the district $20,000. Roane simply made them accountable for those actions. 

It makes us wonder, if a student broke the law and tried to blame it on someone else, what would happen? What if a teacher broke the law? What if the superintendent broke the law?

Following the decision to settle, the district released a three-page statement noting, in part,“We did not know at the time that our actions would or could result in a claim that we had not followed the Colorado Open Meetings Law.”

The statement concludes by noting that the board now better understands “the complexities of Open Meetings Law requirements.”

“We will certainly be more cautious in the future,” it ends.

The board missed the whole lesson. They put the blame on the attorney who was fighting on behalf of the public’s right to know. And they failed to apologize to the public for not educating themselves about the Colorado Open Meetings Law in the first place.

We held the BOE to the standard of following the law and they let us down. 

As ASD’s new superintendent, LeBlanc-Esparza has been a breath of fresh air. It is ironic how the BOE hired someone who is commendably open and transparent after the manner in which she was hired. She may not have been the board’s first choice for the job, but she has demonstrated that she is an excellent choice.