The Michigan Court of Appeals recently dismissed a lawsuit filed against the Detroit Public Schools Community District Board of Education, which alleged a series of Open Meetings Act (OMA) violations concerning its superintendent search. A Felon’s Crusade for Equality, Honesty, and Truth v Detroit Pub Sch Cmty Dist Bd of Ed, COA Case No. 343881 (2019).
The board appointed a three-member search committee to review organizations that could assist the board with the superintendent search. The search committee recommended, and the board approved in open session, retaining Ray and Associates, Inc.
Ray screened 75 applicants and narrowed the candidate pool to 10 applicants who met the board’s criteria, including educational background and previous employment/experience.
At a special meeting, the board met in closed session to review the applicants’ resumes and a short video clip of each candidate responding to questions posed by a Ray representative. Board members then anonymously ranked the applicants and submitted their rankings to the Ray representative, who tallied and announced the results to the board. Board members testified that there were no deliberations or decisions made during closed session.
In open session, the board members discussed each applicant (identified only by the ranking each was assigned in closed session) and narrowed the field to three final candidates. The board publicly released the names of the final three candidates within 24 hours after the board meeting.
The next month, a different board committee visited each candidate at his or her workplace. While one committee member testified that a candidate answered questions during an on-site visit, the other two committee members denied that the candidates were interviewed during the on-site visits.
At a later special board meeting, board members considered each candidate’s qualifications, the information gathered during the interviews conducted by Ray, and the on-site visits. After deliberations, the board voted to select a new district superintendent.
A nonprofit organization sued, claiming that the board committed various OMA violations, including that the search committee failed to: post notices of its meetings; hold public meetings; maintain proper meeting minutes; and decide which organization to use during an open meeting of the board. The organization also argued that the board rubber-stamped the search committee’s recommendation of Ray, decided several matters privately or in closed session, and selected the new superintendent privately or while in closed session after improperly holding on-site interviews.
Selection of Ray
The Court of Appeals concluded that the search committee’s selection of Ray to assist the board with the superintendent search did not violate the OMA requirement that a public body’s meetings, decisions, and deliberations occur in open session. The court analyzed the OMA’s definition of a public body, which includes “a committee that is empowered to perform a governmental function.” Because the board only tasked the search committee to recommend, not to select, a firm to the board, the court found that the committee was not a “public body” empowered to perform a governmental function.
Importantly, the court did not address whether Ray’s narrowing of the candidates for the superintendent decision violated the OMA. The Michigan Supreme Court has held that winnowing a field of candidates may constitute a decision rather than an advisory function.
Closed Session Consideration of Candidates
The court’s opinion provided that a public body may enter into closed session for the purpose of considering a job candidate’s employment application, if the candidate requests that the application remain confidential. Employment interviews, however, must occur in open session. Without addressing whether the applicants requested that their applications remain confidential, the court concluded that the board’s anonymous ranking of candidates in closed session did not violate the OMA. The court emphasized that the board did not deliberate on candidate qualifications or make any decisions during closed session. Rather, the court reasoned that the process gave each board member an understanding of each applicant’s general standing and served as a starting point for the board’s public session deliberations.
The court also concluded that the board’s decision to refer to each applicant by number, rather than by name, in open session did not violate the OMA. The court reasoned that the OMA recognizes that there are benefits to maintaining confidentiality, including avoiding negative consequences from the applicant’s current employer. The court also found that nothing in the OMA suggests that the Michigan Legislature intended applicant identities to become known before the interview stage.
Finally, the court dismissed the claim that the committee’s visits to the candidates at their workplace violated the OMA. The court emphasized that the purpose of the on-site visits was to observe the candidates in their current work environment, not to conduct interviews.
This decision serves as a reminder to school officials that a school board can review a school employment application in closed session at the request of the applicant. The holding, while unpublished and not binding on other courts, provides a legal basis for a school board to keep an applicant’s name confidential until the interview stage. The decision also verifies that a school board and its committees may conduct site visits to observe applicants during the application process. To minimize claims that interviews occurred, employment applicants should not be asked questions during on-site visits.