Amid its efforts to create a more transparent and accountable governing board, Lycée Français de la Nouvelle-Orléans charter school officials on Monday night engaged in activities that lawyers say appear to subvert Louisiana’s open meetings laws.
The school has taken the bold step of rebuilding its board, requiring all current board members to resign effective June 30.
But as a five-person committee met this week to narrow down a list of 29 candidates to replace them, a consultant hired to help in that process made it clear he’d already privately polled each of the committee members as to their top picks and pared that list down to 15.
[module align=”right” width=”half” type=”pull-quote”]“No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” — Louisiana Constitution, Article XII, Section 3[/module]Attorneys familiar with Louisiana open meetings law said the process sounds like it was devised to skirt a law that starts, “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”
If so, this could mark the third time in the last year Lycée’s board has operated in a manner that does not appear to comply with state law.
Jeremy Hunnewell of EMH Strategy on Monday presented the list of 15 names that, he said, were most popular with committee members when they were asked — in private emails and phone calls — to list their top 20.
“I’m kind of thrilled by the manner of agreement,” committee member Robert Bell remarked during the meeting after Hunnewell scribbled the names of the first round picks on a white board during the public meeting — without sharing publicly who was not picked.
Hunnewell said seven of the top 15 people were picked by all five committee members in his private exchanges with them; another seven people were listed by four members; and one person was selected by three.
Before they voted to accept the names, Lee Reid, an attorney for Lycée’s board, told committee members that they could add any one else to the slate. “Is there anyone missing on the list you feel really strongly about?” he asked.
No one responded with any objections. And with little discussion, the committee voted to approve the list of finalists.
Problematic deliberations?
New Orleans attorney Loretta Mince, whose specialties include media law, said on Tuesday that the series of events appears problematic in the face of laws that require public bodies deliberate in public.
“If the committee members were asked to rank or vote for their top picks out of the 29,” Mince wrote in an email to The Lens, “and those rankings or vote were used to compile the list of 15, and eliminate the other 14 from consideration, then I believe that would constitute a proxy voting procedure, secret balloting, or any other means to circumvent the intent of the Open Meetings Law.”
Louisiana’s Attorney General issued an opinion in October related to the use of email to solicit the opinions from members of a state or local governing body. In it, Buddy Caldwell writes that open meetings law “prohibits questioning a majority of a public body on how each member intends to vote, whether such an inquiry is called a poll or not.”
Hunnewell and Lee Reid, an attorney for Lycée’s board, defended the process as being well within bounds of the law.
“I couldn’t ask them who they were going to vote for,” Hunnewell said. “But it’s ok for me to ask them, ‘Who do you like?’”
“We also wanted to be in a position where we weren’t asked to say anything negative about anyone,” Hunnewell said.
[module align=”right” width=”half” type=”pull-quote”]“This is one action along a continuum that will lead to a person holding a public position. All of those processes should be transparent.” — Aaron Mackey, Reporter’s Committe for Freedom of the Press[/module]But Aaron Mackey, an attorney for Reporter’s Committee for Freedom of the Press, said that concern alone isn’t enough to merit skirting the requirement that such deliberations occur in public. While there may have been no intention to hide the information, he said, the end result is that a portion of the governing process was concealed.
“This is one action along a continuum that will lead to a person holding a public position,” said Mackey, “All of those processes should be transparent.”
Though the board members had access to the full list of 29 applicants prior to the meeting, none of that information was shared during the meeting. And hardly any applicant names were discussed — not even Lycée’s board Chairman Jean Montes, the only current board member who reapplied for a spot.
After the committee meeting adjourned, The Lens requested information on all applicants. Hunnewell responded to that request by email an hour after the meeting ended.
“Understanding who remains on that list and who doesn’t is an important governmental function,” Mackey said before referencing a Louisiana court ruling from 1981 that deals with a similar situation.
Baton Rouge case bears similarity
In that case, a state appellate court ruled that a committee of the East Baton Rouge School Board violated open meetings laws after they met in executive session and reduced 41 school board administrator applicants down to 10 semi-finalists.
In that instance, the committee members each wrote on a piece of paper their top 10 picks. The 10 candidates who received the most slips of paper were given a chance to interview. The committee used a similar process a couple weeks later, narrowing the field down again to four.
In both cases, the board finalized its decisions during an open meeting as Lycée did, cutting applicants from consideration in a public vote. But the court still ruled that the process by which the lists were narrowed violated Louisiana’s open meetings requirements.
[module align=”right” width=”half” type=”pull-quote”]”The trial court, while acknowledging the committee members’ good faith belief that their actions were not final, found that these actions constituted a vote…The evidence clearly supports this finding.” — Court of Appeal of Louisiana, First Circuit[/module]During that case, the defendants also argued that board members had the opportunity in the public meeting to add or subtract names from consideration. The court determined that wasn’t enough to satisfy the law.
“The trial court, while acknowledging the committee members’ good faith belief that their actions were not final, found that these actions constituted a vote, the practical effect of which was to reduce the number of people under active consideration and to in effect eliminate all but those ten, and then four, applicants named after each of the executive sessions,” the appeals court opinion reads. “The evidence clearly supports this finding.”
The court also gave little value to the argument that vetting the candidate in public could cause the candidates humiliation or embarrassment.
“In all selection processes, there are winners and losers; those who are chosen and those who are not,” the court opinion said. “While those who are not chosen might naturally be more comfortable with a private display of the relative support each obtained, we believe that promoting the public policy of openness mandated by this law is far more important to our society as a whole than is the avoidance of whatever slight discomfort, if any, might occur to an individual applicant.”
[module align=”right” width=”half” type=”pull-quote”]“We disagree with the way you have characterized the activities undertaken by Jeremy and the Nominating Committee.” — Lee Reid, attorney for Lycée Français de la Nouvelle-Orléans[/module]Asked about that case on Tuesday, Reid said the circumstances here are “much different than the case law you cite.”
“We disagree with the way you have characterized the activities undertaken by Jeremy and the Nominating Committee,” Reid wrote in an email. “We believe that getting feedback from the Committee Members, compiling that information and reporting that feedback in an open meeting for discussion by the committee and the public complies with the Open Meetings Laws.”
Prior problems
This is not the first time Lycée’s leaders have had to answer questions about their legal obligation to conduct business in the public eye.
Last month, Montes conceded in an email to The Lens that his board had violated open meetings laws when it discussed in emails with one another how to force founding principal and CEO Jill Otis from her post.
And in December, the board adjourned its formal meeting, kicked out media and “anybody who is not connected with the family” of Lycée, and asked upset parents to remain in the room to discuss matters involving the school’s leadership and governance with the three members of the board who remained.
That closed-door session followed a 45-minute, open meeting during which board members voted 6-0, with little discussion, to “ratify” an earlier hiring an interim CEO.
Actions like these prompted Hunnewell’s involvement at the school in the first place. The management consultant was hired to help the school shore up its leadership and governance after state schools Superintendent John White asked the Louisiana Association of Public Charter Schools to help the school out of a tumultuous time. The charter schools association tapped Hunnewell.
It was Hunnewell who last month formally identified the school’s need for a new a new board and CEO in a report that recommended the very creation of this nominating committee charged with finding new board members.
Still, Hunnewell, said his actions did not subvert the law. “They simply added me to that process to speed it along,” said Hunnewell.
On Tuesday, Reid said The Lens’ questions would prompt some board action, however.
“So that your article does not make anyone in the Lycée community uncomfortable with the process,” Reid wrote, the committee members will, “confirm their individual feedback” during their April 2 meeting — when they are expected to start interviewing board candidates — and state the names of the people they wish to interview.
Correction: An earlier version of this story misattributed a quote. Committee member Robert Bell said, “I’m kind of thrilled by the manner of agreement.” It was not spoken by committee chairman Jeff Teague. Also, Bell’s name was originally misspelled. The story has been updated to reflect those corrections.