TUSD ordered to release names of sup't finalists
A judge has ordered Tucson Unified School District to release the names and resumés of three finalists for superintendent. The district announced that new leader H.T. Sanchez was the sole finalist for the post in June, but had also short-listed three others, whose identities were kept confidential.
Sanchez was ultimately hired by the district, after the Governing Board interviewed the other candidates on June 8.
Pima County Superior Court Judge James Marner gave TUSD until Aug. 10 to release the names and application materials, in a ruling on a suit brought by the Arizona Daily Star to compel the district to disclose the information under state public-records laws.
Superintendent Sanchez, who was given a three-year contract when he was hired to replace former district leader John Pedicone, said the district's legal counsel would review options for an appeal.
"Those records may come out today," he said, or the district may wait until the Governing Board can consider an appeal at a meeting. "That's not my decision," he said.
Phoenix attorney Dan Barr, who represented the Star, said he was "stunned they litigated this case."
"The Arizona Supreme Court decided this issue 22 years ago," Barr said. In Arizona Board of Regents v. Phoenix Newspapers, the court found that a list of semi-finalists to become president of Arizona State University was a public record that must be released.
"It's important that the public know about what their public officials are doing, especially in a case this important," Barr said.
In the ruling, Marner denied the district's claims that the names and resumés were protected from disclosure under the executive session exemption:
The Court finds TUSD’S argument that the résumés of applicants are exempt from disclosure by way of the executive session exception is not convincing. The plain language of the statute concerns the deliberations and findings of the executive board. Nowhere in A.R.S. § 384131.01 did the legislature indicate that all documents considered by a public body should be afforded the same protection from public disclosure. Had the legislature so desired, it could have included such language.
The Court finds that the executive session exception has a discrete application. TUSD’s proposed application would allow a public body to imperrnissibly expand the exception by unilaterally declaring that any existing outside information considered at an executive session is privileged, thereby avoiding the clear legislative intent that the actions of a public body should be taken, whenever possible, in an open forum.
Sanchez echoed concerns presented by district lawyers that disclosing the names would have a chilling effect on future applicants.
"I think everyone considers the confidentiality of the process" when deciding to apply for a post, he said.
Governing Boardmember Mark Stegeman agreed, saying, "I'm unhappy we've placed ourselves in a position – regardless of fault — that we have to betray an expectation of confidence that we had given these candidates."
That argument didn't pass muster with the judge.
The court found that TUSD did not present "sufficient evidence that would compel it to conclude that the public’s interest in knowing the identity of the three final candidates is outweighed by any other legitimate concerns." Marner pointed out that the district 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."
From the ruling:
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.
Marner denied the plaintiff's request that the district pay attorney's fees in the case.
Barr said he would file a motion requesting the judge to reconsider the denial of fees.
"The standard for awarding fees has changed," he said. That decision no longer rests on arbitrary and capricious conduct, but on a party "substantially prevailing" in a suit.
As the ruling gave the Star everything it asked for, attorney's fees should be awarded, Barr said.