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home : news : news June 24, 2016

9/28/2012 6:10:00 AM
LUHS denies Lakeland Times' request for Fortier evaluations
Kleinhans claims exemption and, if not, says they are not in public interest to release
Rich Fortier
Rich Fortier

Richard Moore
Investigative Reporter

News Analysis

The Lakeland Union High School district has denied a Lakeland Times’ request for two pages of purportedly negative comments about incoming LUHS boys basketball coach Rich Fortier, comments compiled by top school officials and circulated among some school board members prior to the board’s coaching decision last month.

At an Aug. 27 school board meeting, assistant principal and activities director Justin Szews recommended hiring academy facilitator Levi Massey as coach over Fortier. Szews said members of an interview committee for the position had unanimously voiced their preference for Massey, though he said the committee had taken no formal vote. 

As it had in July, though, the board rejected the recommendation on a 5-4 tally, and then voted 7-2 to hire Fortier.

However, as The Times reported, during discussion at that meeting, board member Tami Schroeder asked why the interview committee had been provided with two pages of negative comments about one of the two candidates, while receiving none about the other. 

School officials did not answer her, The Times reported, and Schroeder did not identify the coach, though multiple sources told The Times the comments were about Fortier. The Times then asked for the two-sheet compilation in an Aug. 28 public records’ request.

In a Sept. 10 response, the school turned over some records – among them, Fortier’s resume and an email in which LUHS district administrator Todd Kleinhans reported to board members that Massey was the “unanimous recommendation by the interview committee” – but denied the request for the comments’ sheets.

In doing so, Kleinhans acknowledged that the comments were related to Fortier, and he also indicated he had sent the sheets to at least one school board member in an email.

“Not being disclosed by the district are notes drafted by Athletic Director Justin Szews and Principal James Bouché regarding their telephone conversations with prior employers of Mr. Fortier, which were also attached to my Aug. 27 email to Mr. (school board member Joe) Fahrenbach,” Kleinhans wrote.

The lack of public access to the comments raises a host of questions. For instance, why did Szews and Bouché compile a list of negative comments about Fortier and not Massey? Did the school simply not receive any negative comments about Massey, or any comments at all? How many former employers of Massey did they contact, and who were they?

Likewise, did the school receive no positive comments about either Massey or Fortier? Or, do those comments exist but have never been released? These latter questions raise another avenue of inquiry, given the positive praise at public meetings for Fortier: If officials received positive comments about him, why were they apparently not included in the comments distributed to the interview committee? And who were the former employers the staff interviewed?

And so on one level the issue is transparency and the ability of the community to vet the adequacy and the veracity of the hiring process. Put simply, with so many outstanding questions, is it or is it not in the community’s best interest to see how the district administration conducted itself? 

Maybe or maybe not, but, in any event, an inquiry about what is or is not in the public interest is a matter of opinion and not appropriate for analysis here.

But Kleinhans’ denial forces a second standard of review. Namely, on a legal basis, are the records disclosable, as The Times believes, or are they properly exempt from the open records law, as LUHS asserts? Just how do the school’s reasons for denial mesh with interpretations of the attorney general’s office (using the Department of Justice’s Open Records Compliance Guide) and past case law?


The reasons

First, Kleinhans contends the telephone evaluation interviews are essentially letters of reference specifically exempted by the law.

He quotes the statutory exemption: “Information relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning, including performance evaluations, judgments or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees.”

While Kleinhans can make that argument, the language is murky at best, while the plain language surrounding the exemption suggests that it refers to existing employees rather than to potential employees.

Indeed, the section including the exemption is entitled “employee personnel records.” Evaluations conducted during a hiring process could not be so classified – for example, using Kleinhans’  logic, similar evaluations for applicants not hired would also qualify as an employee personnel record, though the person never became an employee. 

Indeed, in the paragraph exempting the information, the statute clearly says such information can only be released to an employee, the employee’s representative, or a certified collective bargaining agent – in others words, to existing employees or their authorized representatives.

Kleinhans concedes the exemption might not apply, but, in the letter, he has a ready comeback: In applying the state’s open records balancing test, the district nonetheless determined that the public interest in nondisclosure outweighed the public interest in disclosure, based on the Legislature’s expressed intent and policy of the previously cited exemption.

Kleinhans does not define precisely what the public interest would be in nondisclosure, but he suggests it is to protect the privacy of records so as not to scare away future employment recruits who might be repelled at the thought of such documents being released.

“The Legislature has determined that, despite the general presumption in favor of the disclosure of public records, certain records related to public employees should not be available to the public,” he wrote. “Specifically, disclosure of evaluative documents such as letters of reference and similar materials could have a chilling effect on those who might otherwise seek public employment.”

To be sure, there are a number of court cases supporting Kleinhans’ assertion. For instance, the DOJ compliance guide states, the Supreme Court’s 2005 Hempel decision cites the potential loss of morale if public employees’ personnel files are readily disclosed as a factor weighing against public access, and the same case cites the “potential difficulty attracting quality candidates for public employment if there is a perception that public personnel files are regularly open for review.” 

But, once again, all of these balancing tests for and against disclosure refer to personnel records of current employees, not to evaluations of potential employees. 

But, even assuming applications are included in the “personnel” record category, the court has not strongly endorsed nondisclosure. While the court did cite the”potential loss of morale” if personnel files were disclosed, it called the argument only “plausible” and did not “fully endorse it,” the DOJ compliance guide emphasizes. 

Then, too, the state’s compliance guide states, “the scrutiny of rank-and-file employees in the records extends so far such that it may discourage qualified candidates from entering the workforce. However, the court found this factor to weigh only ‘slightly’ in favor of nondisclosure.” 

On the other hand, multiple court decisions have come down squarely in favor of disclosure except in certain narrowly construed instances. Indeed, a  scan of the law concerning employment records narrows reasons for nondisclosure to just two areas – the “slight” concern about the chilling effect of disclosure on future employment and the reputational and privacy interests of the subject of the records – and in each case the public interest in obtaining essential information about the operation of government most often trumps the reasons for nondisclosure.

That is particularly true when it comes to the private interest of the employee involved compared to the public’s interest in having access to the information.

For example, according to the DOJ compliance guide, if the information that would pose the most potential reputational harm already is available in the public domain, then disclosure is favored (Kroeplin case, 2006).

In the Fortier matter, specific comments have not been made public, but the public knows nonetheless the administration compiled two sheets of negative comments – a disclosure, it could be argued, that by itself could pose the greatest harm to Fortier’s reputational interest, simply because the public has no idea of the seriousness or nature or even the accuracy of the evaluative comments.

Case law also favors disclosure, the compliance guide continues, when the employee has other available avenues of recourse, such as the ability to file a response to an inaccurate or misleading fact disclosure, if indeed the negative comments are misleading or nonfactual (Zellner I, 2007). 

In this case, it could be argued, the disclosure of the fact of the sheets’ existence has already harmed Fortier’s reputational interests; disclosure of the comments themselves would give him the chance to rebut them publicly. 

In the end, the compliance guide concludes, the private interest of a person mentioned or identified in the record is not a proper element of the balancing test, except indirectly.

“If there is a public interest in protecting an individual’s privacy or reputational interest as a general matter (for example, to insure that citizens will be willing to take jobs as police, fire, or correctional officers), there is a public interest favoring the protection of the individual’s privacy interest (Linzmeyer decision),” the compliance guide states. “Without more, potential for embarrassment is not a sufficient basis for withholding a record. 


The public interest

What matters most, then, is whether the public interest is served by releasing the information. In this case, a review of case law in comparable situations would point toward full disclosure of the records.

To wit, as basketball coach, Fortier serves in a very important role at LUHS, and the courts have repeatedly favored disclosure when it comes to records revealing potentially important information regarding educators in sensitive positions.

“In Jensen v. School District of Rhinelander,  the court held that the public interest in disclosure of a school superintendent’s performance evaluation outweighed his reputational interest because a public official has a lower expectation of employment privacy and because prior media reports had already compromised the superintendent’s reputational interest,” the compliance guide states.

And in Zellner I the state Supreme Court also held that “the public has a significant interest in knowing about allegations of public schoolteacher misconduct and how they are handled, because teachers are entrusted with the significant responsibility of teaching children,” the compliance guide states.

Likewise, in Linzmeyer, the guide stated, records containing evidence and information regarding a school teacher’s inappropriate comments toward students were subject to disclosure. 

Given those decisions, it could be argued that it is without question in the public interest for the public to know exactly what was said about Fortier’s past employment – whether they were serious or minor, whether they were accurate or made up – and whether the list of former employers was comprehensive or constricted to express a bias against Fortier.

How the court would rule is anybody’s guess, but there is one final legal element to consider. 

Kleinhans refers in his letter to a statute forbidding disclosure of “letters of reference” to employees who request to see their personnel files.

“If a record is not even disclosable  to the employee to whom the record relates, then it presumably not disclosable in response to a public records request,” Kleinhans wrote.

Perhaps, but whether people seeking to see who said what about them is as important as the public knowing about potentially serious information, either about the subject of an evaluation or about those who conducted the evaluation, is a separate and distinct question. 

Finally, there remains the issue of whether negative comments are personnel records. Indeed, the term “applicant” is used only once in the state’s compliance guide, and that points to a statute governing civil service employees, in which records’ custodians, under certain conditions, may keep applicant evaluations closed. The term ‘shall’ is not used.

School staff are not in the civil service, of course, but if a government application can be compared to a personnel record, then a court might compare a school applicant to a civil service applicant in determining disclosure or nondisclosure.

Richard Moore may be reached at richardmoore.gov@gmail.com

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