HIRING A MANAGER/CHIEF UNDER OPEN MEETINGS & OPEN RECORDS ACTS

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HIRING A MANAGER/CHIEF UNDER OPEN MEETINGS & OPEN RECORDS ACTSPresented by Richard Lyons

1.WHO needs to conduct search?

2.WHY do you conduct search?

3.HOW do you conduct search?

4.WHEN can you make decision to hire?

5.WHAT do you do after decision is made? WHO NEEDS TO CONDUCT THE SEARCH?

Any local government (special districts included) hiring a Chief Executive Officer (CEO), and that appoints a Search Committee.WHO NEEDS TO CONDUCT THE SEARCH?

SEARCH COMMITTEE

Q: If we dont appoint a committee, do we have to comply with statutes?

A: If a search is conducted, you have a Search Committee.WHO IS A CEO? (legal definition)

A person in non-elective employment position with a political subdivision [of state] except employment positions in [a classified system or civil service system].( 24-72-202 (1.3), C.R.S.)WHO IS A CEO? (functional definition)

Whoever fills a position to which the Board has lawfully delegated total management and executive functions.

WHO IS A CEO?

General Manager

Executive Director

Chief Operating Officer (COO)

Fire Chief ?

WHO IS A CEO?

A Fire Chief of large department who has been delegated all management authority for District operations/business/affairs (in addition to command of fire/rescue department) is a CEO.WHO IS PROBABLY NOT A CEO?

Uncompensated volunteer chief of volunteer department who lacks management or operational authority for District operations/business/affairs, and only has responsibility for fire-rescue operations.WHO IS PROBABLY NOT A CEO?

Accounts manager water/sanitation district.

Golf course manager.

Board secretary/administrative assistant.

Other middle managers.

WHY A SEARCH?

Finding the right fit is critical to success.

Good leaders DO make a difference!

Opportunity to strengthen relationship with taxpayers/customers.

WHY A SEARCH?

Eliminates criticism of buddy system.

Protection from legal claims of discrimination. Establish transparency.

WHY A SEARCH?

OPPORTUNITY FOR BOARD REFLECTION:

Why did we lose our CEO?

Noncompetitive compensation package?

Lack of Board support or direction?

Micromanagement?WHY A SEARCH?

An in-house search is permissible.

Must still establish process and timelines. Follow self-imposed process to promote credibility.

HOW IS SEARCH CONDUCTED?

Federal limitations.

State requirements.


FEDERAL LIMITATIONS:

Can not discriminate on basis of race, color, creed, gender, disability, religion, or age (Colorado adds sexual preference).


FEDERAL LIMITATIONS:

No affirmative action unless otherwise required by court decree or agreement.

Probably no need to state equal opportunity employer, unless


STATE REQUIREMENTS:

In an open meeting, Board shall:

Establish search goals. Written job description. Requirements for job. Deadline for applications. Selection procedures. Timeframe for Board decision.( 24-6-402(3.5), C.R.S.)


JOB DESCRIPTION: (suggestions)

Define or List:

CEOs major duties. Expectations of Board. Physical requirements (ADA essential functions). Any particular objectives? (e.g. create capital construction 5 year plan)


POSITION REQUIREMENTS (suggestions)

Educational level. Experience (years and/or previous jobs). Specific qualities unique to Districts needs. References. Resumes/CVs or application form?


ESTABLISH DEADLINES/TIMEFRAMES:

Establish both. OPENING date as well as the required CLOSING for submittals. Target date for final decision. Dont rush! Date of disclosure of finalists (per Open Meeting laws) will dictate earliest date of contract.


ESTABLISH PROCEDURES:

Who will be on the Search Committee? Entire Board? Board sub-committee? Board and non-board members? Only non-Board members? (to make recommendation only)


ESTABLISH PROCEDURES

Determine if Board/Committee will prepare brochure or fact sheet. Plan for contract (terms, length, moving expenses?) Set a budget.



Brochure vs. Fact Sheet:

District description. Budget, valuation history, growth, etc. Debt. Employees. Area/customers. Board members (terms, background, officers). Sell the District!HOW IS SEARCH CONDUCTED?


Consult your legal counsel: - draft a model employment contract - ready to fill-in-the-blanks Decide salary range. Seek legal counsel on executive session issues.HOW IS SEARCH CONDUCTED?

ESTABLISH PROCEDURES

Getting the word out:

Ads where? Website. Professional associations of managers/chiefs. SDA. Direct targeting? (Mass mailing?)HOW IS SEARCH CONDUCTED?

APPLICATION MANAGEMENT:

One address! Enforce opening date. Assure confidentiality.HOW IS SEARCH CONDUCTED?


24-72-204 (3)(a)(XI)(A) C.R.S., exempts applications of non-finalists. Not public records. Keep confidential!HOW IS SEARCH CONDUCTED?

WHY CONFIDENTIAL?

CONFIDENTIALITY = BETTER APPLICANT POOL



Enforce deadlines. Potential legal issues. Dont keep it open waiting for a favorite candidate.


Meetings of Search Committee:

Open Meeting Law applies (notice, agenda, minutes). Executive Session: to consider documents which are protected by the mandatory nondisclosure provisions of Open Records Act. ( 24-6-402(4)(g), C.R.S.) HOW IS SEARCH CONDUCTED?

Search Committee can meet in executive session to:

Review. Discuss applications. Determine if requirements met. Establish short list of finalists.HOW IS SEARCH CONDUCTED?

CONDUCTING THE REVIEW:

First, the Search Committee Two Step: REJECT those not meeting requirements. REVIEW those that do.



Second, Search Committee Three Step:

NO MAYBE YES (short list)



Expect movement from discussion:

from YES to MAYBE from MAYBE to YES



Search Committee can (should) do the Three Step at least twice (suggested). A wise chair cautions against over-inclusiveness.HOW IS SEARCH CONDUCTED?

FINAL REVIEW:

Shorten the preliminary SHORT LIST. Would Committee be willing to recommend any of these? There is no honor being on short list if not selected. Finalize SHORT LIST.HOW IS SEARCH CONDUCTED?

DISCLOSURE OF SHORT LIST:

24-6-402 (3.5), C.R.S., requires disclosure of names of finalists on short list. Need not publish just MAKE PUBLIC. Recommend posting list like agenda.



Mandatory disclosure requirement applies even if private firm is assisting in the search.



Applications of those on short list are now public records. Public and press can inspect and copy. Letters of reference remain exempt from public disclosure.( 24-72-204(3)(a)(XI)(E), C.R.S.)


If only 3 or fewer applicants or candidates possess minimum requirements, then ALL are finalists.


THE GAMES THEY PLAY!

A short list of one?

We dont want anyone but you!?


Short List Interviews:

Search Committee and Board? Board only? Board plus staff members? Members of public? Other CEOs in community?


After Short list released, can interviews of finalists be in executive session?

Personnel matters exception?

Do you have to have an employee to have a personnel matter? HOW IS SEARCH CONDUCTED?

Does 24-6-402(3.5), C.R.S., suggest interviews in executive sessions may be permissible?


Nothing in this subsection (3.5) shall be construed to prohibit a search committee from holding an executive session to consider appointment or employment matters not described in this subsection (3.5) and otherwise authorized by this section.

ButHOW IS SEARCH CONDUCTED?

If not an employee, then what is the otherwise authorized exception? No appellate decision. One district court ruling.


For STATE public bodies:

Must hold public session for interviews re: appointment or employment of a public official or employee;

UNLESS the applicant requests an executive session.HOW IS SEARCH CONDUCTED?

NO SIMILAR EXCEPTION FOR LOCAL GOVERNMENTS!

Potential applicants are NOT employees.HOW IS SEARCH CONDUCTED?

Colorado Press Associations attorney:

we take the position that local public bodies may not ever conduct an interview session with a candidate behind closed doors under the personnel matters exception.HOW IS SEARCH CONDUCTED?

The Court finds that [the personnel matters exception] is limited to discussions of issues concerning current employees, not applicants for government employment.

Judge Theresa CisnerosEl Paso County District Court


Penalty: court order to comply. Pay attorneys fees of citizen/press. Record of executive session becomes public. Gummina v. City of Sterling, 119 P.3d 527 (Colo. App. 2004).HOW IS SEARCH CONDUCTED?

Short list:

Check out references! Go beyond the wall of silence. On-site visit? Due diligence.HOW IS SEARCH CONDUCTED?

Dont tell anyone on short list You were our No. 2! Be prepared in case you are rejected by No. 1. Reconsider all finalists.

WHEN CAN YOU MAKE DECISION?

Board Decision:

No offer of appointment or employment until 14 days AFTER release of short list!( 24-6-402(3.5), C.R.S.)

DECISION MUST BE IN OPEN SESSION.WHEN CAN YOU MAKE DECISION?

Decision Must Be in Public:

The [recording] makes it abundantly clear that the Board adopted the proposed position of selecting Mr. Blake as the sole finalist for the Chancellors position during the executive session The public vote, without any further discussion or deliberation, was nothing more than a rubber stamp of the decision already made in executive session.Judge SchapanskiLarimer County District CourtWHEN CAN YOU MAKE DECISION?

Formal motion to hire. Authorize President, or subcommittee, or attorney, to negotiate contract details. Set a deadline date for acceptance of offer. Set a date for Board to finally approve contract.

NOW WHAT?

Press release?

Public meet and greet?POINTS TO REMEMBER?

Mandatory award of attorneys fees if violate Open Meeting or Open Records laws. Establish procedures, timelines, etc. in public. Involve your constituents? Disclose list of finalists. No offer during the 14 day period. No shortcuts!QUESTIONS?

HIRING A MANAGER/CHIEF UNDER OPEN MEETINGS & OPEN RECORDS ACTS

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