It was deja vu all over again Wednesday night when Buffalo Board of Ed President Ralph Hernandez mentioned during a committee meeting that he thinks the board the interviews of candidates for the East District seat should be done in public. (Interviews will be held during a special board meeting at 5 p.m. Thursday in Room 801, City Hall.)
Chief of Staff Jim Kane (at left) had almost the identical reaction he had when I requested the full list of the names of the candidates earlier this week. To paraphrase (slightly): "We can't do that. We've never done it that way before in this district."
(For more details on how that played out last night, check out the full story.)
Here's a snippet of the conversation:
“You’re going to do the interviews in public?” Kane asked.
“Sure,” Hernandez responded.
“That would be a first,” Kane said. "We've never done that before in this district."
Gosh, if that line of thinking had prevailed, the schools never would have been integrated.
Bob Freeman (at right), executive director of the state's Committee on Open Government, says that the interviews should, in fact, be conducted in open session. The important point is that the board is filling a vacancy for elective office, Freeman says. Normally, these people would conduct public campaigns, spread their message to residents, and the voters would decide who gets to sit at the board table.
"If you choose to run for office, you throw your hat in the ring, with spotlights on it," he said.
There is exactly one legal case in New York State that directly relates to the situation at hand -- a board deliberating over who should fill a vacancy -- and the judge ruled that those deliberations needed to be done in public. Here's a portion of the judge's ruling (which was upheld on appeal):
"...respondents' reliance on the portion of Section 105(1)(f) which states that a Board in executive session may discuss the 'appointment...of a particular person...' is misplaced. In this Court's opinion, given the liberality with which the law's requirements of openness are to be interpreted (Holden v. Board of Trustees of Cornell Univ., 80 AD2d 378) and given the obvious importance of protecting the voter's franchise this section should be interpreted as applying only to employees of the municipality and not to appointments to fill the unexpired terms of elected officials. Certainly, the matter of replacing elected officials, should be subject to public input and scrutiny" (Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994), modified on other grounds, 207 AD 2d 55 (1994)].
Freeman says that ruling applies to the board's discussion of the candidates as well as the interviews themselves.
Chris Jacobs (at left), the board member who chairs the committee responsible for the process of filling the seat, says the board will get an opinion from its attorney and will decide next week whether the interviews and deliberations will be held publicly.
Jacobs expressed concerns Wednesday that if the deliberations are held in public, some of the board members' honest assessments could prove to be embarrassing to some candidates. Maybe that's true. But state law does not list "avoiding embarrassment" as a valid reason to enter executive session.
What will prevail: past practice -- or open government?
We'll find out next week.
- Mary Pasciak