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News analysis

TUSD continues pattern of secrecy with sup't hiring process

'These folks are unbelievable'

The TUSD Governing Board picked four finalists for the district's next leader Tuesday night: B, G, P and W. And as far as they're concerned, right now that's all the public needs to know about who might lead Tucson's largest school district.

Rather than fully comply with the letter and spirit of Arizona's public records laws, which favor your right to know what the government is up to, the board unanimously picked four finalists who are for the moment completely anonymous to the taxpayers of this town.

"None of your business," they essentially said.

This despite the Arizona Supreme Court holding that the name and qualifications of a candidate for a high-level government job are precisely the business of the citizens of this state.

And this despite the fact that the Tucson Unified School District was smacked down by a judge for their funny business in trying to withhold information about the finalists for superintendent the last time around, when they hired H.T. Sanchez in 2013.

"These folks are unbelievable," said Dan Barr, an attorney and expert in public records law who brought that case, giving his take on TUSD's position Tuesday.

Rather than release the names, district officials tried to throw up illegal hurdles before even responding to a public records request, demanding — contrary to state law — that a specific TUSD form be filled out. Under Arizona's public records statutes, any request specifying an identifiable record is a legal one that must be complied with, even an informal oral one.

But when sent a highly specific written request for records about the candidates for the job on Tuesday morning, district officials instead pushed back, demanding that their form be presented instead. Only after review by the district's temporary legal counsel was the request even acknowledged.

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But that doesn't mean that any records were released.

Rather, the district kept the hatches tightly battened down, lest a tidbit of information escape.

Each of the board members was individually handed a copy of a records request that had been sent to multiple district officials earlier in the day, laying out the state Supreme Court's ruling that the information relating to any candidate for a public position is a public record, and should be released upon request (Board of Regents v. Phoenix Newspapers). There are no "countervailing interests of confidentiality, privacy [and] the best interests of the state" at issue with candidates who have expressed an interest in being hired, the state's high court held.

Four of the five were given that request prior to the meeting, but reporters were shooed away from the dais by TUSD security before Boardmember Rachael Sedgwick got a copy. (She got hers after.)

None of them expressed any qualms about the secrecy inherit in the process during the meeting.

Instead, using just letters rather than names, they chose four of the five possible district leaders they'd been forwarded by an outside consultant and review committee that met behind closed doors, out of the 17 candidates who'd expressed interest by completing the application process.

According to Boardmember Mark Stegeman, not even the members of the board know the names of the candidates, although they reviewed their qualifications during a lengthy closed-door meeting Tuesday afternoon. (Update: Stegeman disputes that this account of his comments about knowing the names of the candidates conveys the substance of his meaning Tuesday. I'll stand by my reporting of his words, but please refer to the comments on this piece for more.)

Instead, the district will release the names in the next day or so, they said, with a series of internal interviews and public meet-and-greets set for next week. The identity of the fifth, passed-over, candidate will apparently be consigned to the dustbin.

Then, they want to vote on a final pick, again using just a letter rather than a name, and not tell Tucson Unified's taxpayers, teachers, students and their families who they've picked "to maintain negotiating leverage" until a contract is worked out, Stegeman said.

Four years ago, the board announced H.T. Sanchez as their choice, and then took 10 days to negotiate a contract.

The next superintendent will be paid $180,000 to $230,000 annually, plus benefits, according to the district's job posting.

What we asked for, and why

There's a lot of stuff about formats and time frames and citing of the law that goes into a good public records request (which is why too many government types want you to use their forms instead). But put simply, and we put it right at the top, we asked for:

1. The list of candidates considered by the Tucson Unified School District for the position of TUSD superintendent.

2. The resumes and full application materials of each of the candidates so considered.

3. The list of candidates for the position of superintendent selected by the TUSD Superintendent Search Screening Committee, including any alphabetical, numeric or alphanumeric identifying codes used to differentiate between the finalists.

4. The list of finalists for the position of superintendent selected by the TUSD Governing Board, including any alphabetical, numeric or alphanumeric identifying codes used to differentiate between the finalists.

The bits about the identifying codes are in there because the district had already made it evident they'd try to dodge disclosure by referring to the candidates and finalists only by a letter, rather than telling anyone who they were picking.

Stegeman and Sedgwick tried to justify keeping the names secret by claiming that early publicity would deter quality applicants from even tossing their names in the hat.

Stegeman repeatedly declined to provide a legal basis for refusing to release the information, saying that he would "defer to counsel" on the matter.

Boardmembers Kristel Foster and Adelita Grijalva said they weren't familiar enough with the legal issue and didn't have the information on hand to provide, and Sedgwick repeatedly said that she couldn't release the information individually "as I'm just a single member of the board."

Hicks didn't address our request for records.

Interim Superintendent Gabriel Trujillo (who applied for the post himself) said that he'd had no guidance from district lawyers on the issue of keeping the prospective superintendents' names withheld from the public, noting that he'd recused himself from any of the board's private discussions about the hiring, and that the review policies had been set by the board.

And why is it important that you and I and the rest of Tucson know?

The state Supreme Court ruled in 1991, when the powers that be at the Arizona Board of Regents tried to end-run releasing the names of the candidates for the post of Tempe Normal, pardon, Arizona State University, chancellor, that:

As is the case in many hiring efforts, be it university president, football coach, or chief executive officer of a large business, those interested will already know who is being considered for the job. This, and the fact that the final candidates have an express desire for the job, should militate against maintaining confidentiality. Candidates who actively seek a job run the risk of their desire becoming public knowledge. Because they are candidates, they must expect that the public will, and should, know they are being considered. The public's legitimate interest in knowing which candidates are being considered for the job therefore outweighs the "countervailing interests of confidentiality, privacy [and] the best interests of the state...."

As voters, we need to be able to review whom our elected officials decided wasn't the best fit for a job, to determine if those electeds are doing the best job for us. Who they say "no" to, and why, can be just as telling as who gets picked.

And the earlier there can be public feedback on specific candidates for one of our community's most important jobs, the better. Sometimes, it can help avoid a bumbling or worse tragic mistake.

Although in the 1991 case that found the Board of Regents had fumbled their handling of public records the court held that "candidates are prospects who are seriously considered, and who are interviewed for the job," the justices made it clear that "finalists are those persons actually submitted to the Board for selection."

The high court ruled that although the entire list of 256 ASU prospects, which included some who might have been nominated by other people, could be kept confidential, the list of 17 candidates who had "an express desire for the job" were public records and must be released.

Similarly, when TUSD tried to withhold the names of the three others who were short-listed but passed over in favor of "sole finalist" H.T. Sanchez four years ago, a Superior Court judge didn't buy the district's arguments, pointing out that its witnesses "could not indicate with any reasonable degree of certainty that their claims of detriment to these candidates or others would ever come to pass" and scoffed at the contention of the district's lawyer, Lisa Anne Smith of DeConcini McDonald Yetwin & Lacy, that records could be withheld because they'd only been put before the board in executive session, behind closed doors.

In that case, Judge James Marner ruled that:

There is insufficient evidence to support TUSD’s claim that these three applicants would suffer any detriment. There is insufficient evidence to support TUSD’s clairn that the district or any other school district in Arizona would be deprived of well-qualified applicants for future superintendent openings. TUSD’s claim that fear of potential problems that some candidates might have if there candidacy became known would discourage the “cream” from applying is not supported by the evidence before the Court.

The same attorney who dropped the ball in 2013, Smith, was until Tuesday night serving as the district's interim legal counsel.

Barr, the Perkins Coie attorney who litigated that case for the Arizona Daily Star, said then that he was "stunned they litigated this case ... the Arizona Supreme Court decided this issue 22 years ago."

Tuesday, calling the district's repeat performance of withholding public information "unbelievable," Barr referred back to the four-year-old legal finding: "Not only is there an Arizona Supreme Court opinion directly on point, but they lost a public records lawsuit to the Star four years ago on the superintendent candidate resumes."

TUSD's top post still needs filling on a permanent basis after H.T. Sanchez was pushed out, resigning in February.

Sanchez, who was paid a base salary of $270,000 and a substantial benefit and incentive package to lead the district of about 50,000 students, was hired in 2013 to fill a spot left vacant after the sudden resignation of John Pedicone, who quit with more than a year his contract.

Prior to Pedicone, the TUSD superintendent's chair was filled by Stan Paz, Roger Pfeuffer, Elizabeth Celania-Fagen, and interim chiefs John Carroll and Maggie Shafer.

Pedicone's predecessor, Celania-Fagen, also left the district early in her contract. She resigned from TUSD in 2010 after less than two years on the job, citing Arizona's cuts in education budgets for her move to a superintendent's post in Colorado.

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Same old song and dance

As noted, this isn't the first time that TUSD has run full tilt along the sidelines of public records laws. In February, as Sanchez was being ousted, officials dragged their feet about releasing the terms of the separation agreement that paid him $200,000 to walk away, only releasing the contract details after pressure from Sentinel and Star reporters after the rest of the press had gone home.

In March, the district appeared to violate open meeting laws when a contract for an interim deputy superintendent was negotiated behind closed doors without the matter ever having appeared on an agenda. The pending interim superintendent who had mandated that her hand-picked deputy also be hired, at an annualized cost of $400,000 plus benefits for the pair, withdrew her name from consideration the same day that TucsonSentinel.com reported on the issue.

Nor is TUSD alone in reading from that playbook.

In the 2015 process that led to the hiring of City Manager Mike Ortega, Tucson officials worked hard to dodge releasing the names of the other applicants.

Please forgive a bit of self-plagiarism, but what I wrote then holds true: Beyond the principle that the public's business should be conducted as much as possible in the view of the public — a precept embodied in Arizona's public records and open meeting laws — there's a practical matter involved.

In a 2013 embarrassment, a national consultant hired to vet candidates for Pima Community College chancellor so botched the search that an entirely new one had to be conducted.

One of two announced finalists for that post withdrew her name from consideration after PCC officials learned of fudged enrollment and $5.2 million in overbilling during her tenure at a former college. It took enterprising reporters about 30 seconds of Googling to discover that, but the professional consultant and college staff didn't.

At the time, the school was teetering on the precipice of being placed on probation by accreditors because of high-level mismanagement. It was, but how much worse would the drawn-out drama with the Higher Learning Commission been if the college had hired a chancellor fresh off a different scandal?

Instead of an earlier public announcement helping the college, the institutional penchant for secrecy meant another search process and a delay of months in picking a new PCC head. And more money spent searching.

Simply put, more scrutiny by the public and press would make reviewing candidates for Tucson's top government jobs more effective. Rather than dodging public input, civic leaders should embrace it.

Rather than picking from a list of letters, TUSD should be soliciting the widest possible input on who'll lead the district. Rather than compressing the schedule and limiting the time that the press and public have to vet the candidates for both skeletons in their closets and blatant misdeeds that should've already been caught, they should welcome the help.

But unless the public holds them accountable, they'll continue to attempt to control as much information as they can. And there's the rub. Officials know they can stall and delay and shuffle their feet and toss up hurdles for others at their leisure. They not only skirt the spirit of the law, they make only the most meager show of meeting its letter.

By the time any news outlet could go to court and demonstrate to a judge how improper their behavior has been, officials will have picked TUSD's next superintendent anyway.

As I quoted regarding the '15 city manager search:

If it were done when 'tis done, then 'twere well
It were done quickly

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have your say   

Latest comments on this storyRead all 13 »

13
10 comments
Aug 10, 2017, 5:39 pm
-0 +0

The board has not discussed how it would respond to litigation on this issue, and it will probably not have that discussion unless litigation occurs. Obviously I cannot predict in advance how I or anyone else on the board would respond to that situation.

Separate from the current discussion over the superintendent search process, if public records requests have been ignored or improperly denied, then the board needs to know about that.

I have worked hard over the years to increase TUSD’s transparency with financial records, test scores, meeting minutes and video, immunization rates at schools, and other information, with some successes. It is an ongoing issue.

12
524 comments
Aug 10, 2017, 2:54 pm
-0 +1

Regarding the reporting of your discussing the process Tuesday, I’ve added a note in the body of the piece.

11
524 comments
Aug 10, 2017, 2:49 pm
-0 +0

Mark,

Rather than carefully crafting secretive processes that you think might survive legal challenges, why not just operate in the open? 

Your contentions that secrecy is necessary were laughed out of court by a judge the last time you hired a superintendent. http://www.tucsonsentinel.com/documents/doc/080213_tusd_doc/

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Click image to enlarge

Paul Ingram/TucsonSentinel.com

TUSD Board President Michael Hicks and Stegeman during a Feb. 28 meeting.

Community Q&A

The finalists for TUSD superintendent — now known only as B, G, P and W — will be interviewed by the Governing Board, meet with employee groups and hold question-and-answer sessions with community members next week. One finalist per day will be reviewed Monday through Thursday. The public community visits are tentatively set for 7-9 p.m. in the auditorium of Catalina High School each day, with Thursday's meeting held at Sahuaro High School instead.

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