THE RIGHT TO KNOW: Just because you’re allowed to, doesn’t mean you have to

July 30, 2018 6:01 am

Most local governments and school districts in Virginia have a top administrator responsible for day-to-day management.

Whether the job is called a manager, administrator, superintendent or something else, candidates are hired by the governing board and charged with both implementing and informing the board’s policies.

The positions are extremely important and can be quite powerful, so much so that the Virginia Freedom of Information Act actually grants an exemption for the “working papers” (meaning correspondence and those materials prepared for the person’s “personal and deliberative use”) of “the mayor or chief executive officer of any political subdivision of the Commonwealth.”

Yet these government CEOs are not directly accountable to the citizens they serve.

Virginia’s FOIA includes exemptions both for the discussions about and records related to a candidate for one of the CEO positions. The act even includes a provision that allows for a governing body to give notice that it will hold interviews at undisclosed times and places within the next 15 days.

Given this wide berth, it’s no wonder public bodies conduct so much of the candidate-search process away from the prying eyes of the public.

But here’s the catch: They don’t have to.

The exemptions for records and meetings? They are discretionary.

No one is required to go into closed session to discuss a candidate. No one is required to keep a candidate’s name or resume confidential. The undisclosed interviews, too, are not required.

Yet many — elected officials, in particular — seem to think that there is a prohibition against sharing job candidate information. They tell the press: “I can’t,” “The law prohibits it” or “I’m not allowed to.”

Last week we saw the person who turned down a job offer to be the interim city manager for Charlottesville call the mayor’s public discussion of the candidate’s qualifications and fit for the city a “lack of adherence to the rule of law concerning council decisions and observing Virginia statute governing personnel hiring practices.”

Even former Gov. Terry McAuliffe once insisted he was “not allowed” to release a report issued after the rough arrest of a UVA student by an ABC officer.

Virginia’s boundless latitude for keeping candidate information close to the vest is in not the only way to do it.

Officials in Austin, Texas, went to great lengths to hold interviews for the city manager’s job away from the public and to withhold the candidates’ names, only to find itself settling a lawsuit brought by the local newspaper challenging the secrecy, releasing the names and promising to follow open meeting requirements in the future.

Alabama law mandates that resumes for county administrator candidates be made public. There is no exemption for resumes in, for example, California, Colorado, Florida, Ohio or Tennessee. Nebraska requires finalists’ CVs to be disclosed. Maine says they are public post-hiring.

The usual justification for the secrecy is that candidates don’t want their current employers to know they are looking to jump ship. Consultants hired to conduct the search process insist that there is a trade-off between transparency to the public and being able to attract the best candidates.

The other side of that coin is that the taxpayers are the ones who will be impacted by the decisions of the winning candidate. Furthermore, they are footing the bill!

The public has more than a busy-body interest in what candidates’ qualifications are and whether they fit with the community’s priorities.

Rather than risk public frustration or animosity inherent to overly secretive search processes, public bodies should embrace policies and practices that keep the public informed about and engaged with the individuals who will be carrying out the board’s policies, which are, at rock bottom, the will of the people.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Megan Rhyne
Megan Rhyne

Megan Rhyne is executive director of the Virginia Coalition for Open Government, a nonprofit alliance formed to promote expanded access to government records, meetings and other proceedings at the state and local level.