A proposed bill that would broaden the use of closed meetings is drawing support from school boards, whose members say they need clearer guidelines on when they can meet privately, and opposition from open-government proponents, who believe it will increase secrecy.
The changes, proposed by Sen. Roy Baker of Norris, would add a provision to Nebraska’s open meetings law that would allow governing boards to discuss job applicants in closed session before finalists are named.
It also would remove the requirement that employee evaluations be done in private only if it’s necessary to prevent “needless injury” to the reputation of a person being discussed.
The Nebraska Press Association, Media of Nebraska and Common Cause have opposed the proposed changes because they would move more public business behind closed doors.
The measure — Legislative Bill 282 — is up for a public hearing this afternoon at the State Capitol.
Baker, a search consultant and former superintendent, said the bill is intended to ensure confidentiality for job applicants and to line up the open meetings law with another law that says that names of job applicants are confidential. Nebraska law requires that agencies make public four finalists, but Baker said that without his provision, there is a loophole that could make other applicants public.
“Often you’re saying to boards, here are the people who applied for the job, and if you want to look at any of the other applicants — those we didn’t include in our recommendation of semifinalists — we provide them with a list,” Baker said. “You can’t do that in open session without those names being revealed.”
Baker said he doesn’t recall a situation in which applicants were revealed that way, but it’s important to make sure recruits know they will be protected through the process.
The other major change would strike the requirement that evaluations be done only in closed session to prevent needless injury to a person’s reputation. Baker said that all sorts of feedback is given during an evaluation, and the phrasing is unnecessarily negative.
Allen Beermann, executive director of the Nebraska Press Association, said the public needs to be able to continue to meet and vet potential candidates, especially superintendents, university presidents and other department heads often drawing six-figure incomes. Anything that broadens the use of private meetings chips away at that vetting, he said.
“The attorney general in various opinions has always says you need to err on the side of openness and transparency on behalf of the public, and that is kind of the bottom line,” Beermann said.
Politicians argue that it’s harder to do business in public, said Larry King, senior vice president of news and content at the Omaha World-Herald, but their business is the public’s business.
“In our democratic form of government, decisions are not supposed to be easy,” King said. “They are supposed to be scrutinized, discussed and judged by the electorate.”
Nebraska school boards support the proposed changes because they create clearer guidelines for them to follow when they’re narrowing down candidates, said John Spatz, executive director of the Nebraska Association of School Boards.
“We fully support transparency in the process,” Spatz said. “We think there’s a conflict between the records and open meetings law regarding the finalists, and how you get to the finalists, and we want some guidance from the Legislature.”
There is inconsistency now, Baker said. For example, the University of Nebraska Board of Regents narrowed its list of presidential candidates in closed session, Baker said.
He said that wasn’t consistent with a 2013 ruling from the attorney general that said the Beatrice school board violated open meetings laws when it used a closed session to narrow its list of superintendent candidates. Baker, who was interim superintendent at the time, said he was a “bystander” to that issue.
“I’m not faulting the Board of Regents at all. I think they did exactly what they needed to do,” Baker said. “The university presidency is a highly sensitive matter.”
At NU, the board created two subcommittees to conduct the search; all eight regents were on one committee or the other. The subcommittees operated in closed session and brought four finalists to the full board for a vote in an open session, which was the first time any of the candidates were openly discussed.
The full board met three times in closed session, citing the need to “prevent needless injury” to finalists’ reputations, before opening a meeting to unanimously pick Hank Bounds.
The board did not debate the decision in open session or mention the other finalists, aside from thanking them.
Howard Hawks, who was board chairman during the search, did not return a call for comment. Current Chairman Bob Phares said the board ensured openness throughout the process, including making the finalists public, interviewing them in open meetings and soliciting feedback from the public and university community. The board followed general counsel instructions when it chose a president, he said.
“There was nothing that said we couldn’t have had that discussion publicly if we wanted to, but I think we preferred to do it where we could protect the folks we were talking about,” he said.
NU legal counsel Joel Pedersen couldn’t be reached for comment. NU spokeswoman Melissa Lee said the motion and vote to name Bounds were done in open session, and the board could have chosen any of the remaining finalists at that time.
Omaha attorney Michael Cox, who represents The World-Herald, said using the “prevent needless injury to reputation” exception, as the regents did in each executive session, is “a stretch” when discussing the qualifications of a top level job-seeker.
“They’re employing this provision to conduct business in private that should be conducted in public,” Cox said.
The proposed bill that would allow the board to meet in private and narrow the field would erode the transparency the Legislature has put into place, Cox said.
Office: Common Cause Nebraska
Issues: Access to Government