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State opinion: South Washington County School Board violated meeting law

The South Washington County School Board violated state law in its handling of Superintendent Mark Porter's final performance evaluation, according to a state opinion.

The nonbinding opinion sought by the South Washington County Bulletin concluded that the District 833 School Board broke the state's Open Meeting Law when it did not publicly summarize its evaluation of Porter at a meeting immediately following the closed-door workshop used to conduct that evaluation.

Board members voted at that public meeting to not renew Porter's contract, but a summary of his evaluation was not made public until a month later. Board members in that evaluation indicated dissatisfaction with Porter's leadership.

The state opinion was issued May 2 by the Department of Administration's Information Policy Analysis Division, which interprets the state Open Meeting Law.

While the opinion is nonbinding, it's very rare for a public body to commit a similar violation in the future, said Mark Anfinson, an expert on the Open Meeting Law who advised the Bulletin on this issue.

"I would bet very, very heavily that the South Washington County School District in the future will follow this opinion quite scrupulously," Anfinson said.

At issue was whether the board complied with a requirement that a performance evaluation conducted privately be summarized at the public body's "next open meeting."

The Bulletin contended that should have taken place at the regular meeting immediately following the closed-door session Dec. 15.

School Board Chairwoman Leslee Boyd instead summarized Porter's evaluation two meetings later on Jan. 26. An attorney for the board later claimed Boyd was given inaccurate information and should have provided the evaluation summary at a board workshop Jan. 12.

In a letter to the state office that handled the Bulletin request, the board's attorney disputed that the summary should have been made public Dec. 15. Attorney Michael Waldspurger claimed the closed-session workshop and public meeting, which started minutes later, actually constituted one meeting, so the evaluation summary was not required on that date.

Waldspurger said the board acknowledged "an inadvertent error" occurred when Boyd received inaccurate information from a Minnesota School Boards Association representative she had consulted about when to summarize Porter's evaluation.

Minnesota Administration Commissioner Spencer Cronk in the opinion acknowledged that the board sought advice to determine its obligation regarding when it needed to summarize the evaluation.

However, the commissioner disagreed with Waldspurger's interpretation of the Dec. 15 meetings. The workshop held privately to conduct the evaluation was not a regular meeting because it was not on the district's schedule of regular board meetings. Also, it started 30 minutes before regular workshops are scheduled to start. That made it a special meeting, the commissioner concluded.

"The South Washington County School Board did not comply with Minnesota Statutes ... regarding its summary of the superintendent's performance evaluation it conducted at a special meeting held December 15, 2011, because the board did not provide the summary at its 'next' meeting, which was its regular meeting that immediately followed the special meeting," Cronk wrote in the opinion.

In a response to the Bulletin, Boyd said she welcomed the "opinion and clarification."

"The full board followed the guidance of the Minnesota School Board Association," she wrote. "The fact that no member of the board -- including the superintendent, who is an attorney -- expressed any concerns to fellow board members about the procedure serves as a testament that all parties were dutiful in their efforts to follow the only guidance that was available."

Board member Ron Kath said he supported Boyd's response.

Another board member said the process concerned him from the beginning.

Jim Gelbmann said he agreed that the board violated the law and had assumed that following Porter's evaluation Boyd would summarize it at the December meeting. Gelbmann said the evaluation was "a sham" because it occurred after he was told a majority of board members didn't support Porter, and it was one of a number of problems with the board's handling of Porter's contract non-renewal.

Gelbmann said he asked Boyd about it after the December meeting, but did not push the issue because he assumed she had received correct legal advice.

In the opinion, the commissioner advised the board to review its process for regular meetings and workshops to avoid "the kind of confusion that resulted here."

Boyd did not respond to a question about whether the board would change anything following the opinion.

"I think it does change something," Gelbmann said, explaining that the board would be "very well served" to learn about the Open Meeting Law from an attorney or the Department of Administration.

Other board members did not comment for this story.

There is no penalty to the district or board as a result of the state opinion. That would only be possible if the board was sued over the issue.

Anfinson, the attorney for the Minnesota Newspaper Association, said he doesn't view penalties as very important.

"What's important is that the law is clarified in a specific case and it's been followed and complied with going forward," he said.

Porter's tenure in District 833 ends in June. The opinion was issued as the board is in the process of hiring his replacement.

That search involved a straw vote taken Saturday to narrow the list of candidates. At the initial direction of the consultant leading the search, individual board members' votes were not going to be public, only the overall result.

The Bulletin questioned that proposal last week, citing a court case that said such votes must be made public, and the board released the results after the vote.

"Not only did we make a significant mistake in handling the non-renewal of Mark Porter's contract, but we were on the cusp of making another major mistake," Gelbmann said.

Scott Wente

Scott Wente has been editor at the South Washington County Bulletin since 2011. He worked as a reporter at other Forum Communications newspapers from 2003 to 2011.

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