There's a major public governmental body in the state, which shall remain unnamed, that is in
the process of beginning a search for a new executive for its institution. In the last few days,
they have held a closed meeting to meet privately with several executive search firms regarding
Apparently, they have cited four exceptions for these closed meetings. Let's look closely at the
exceptions they have cited to see whether they apply to this situation.
Exception 12 -- Can you call these meetings properly closed because they are discussing
documents related to a negotiated contract, until the contract is executed.... ? Well, first we
don't know for sure that they are discussing documents -- the appearance is that they are
interviewing individuals. Regardless, it would seem fairly obvious that the intent of this
exception is to allow your board to discuss your position on these documents vis a vis the other
side, so that when you went back to continue your negotiations, you would know the perimeters
of your position. Pretty hard to have a discussion like that when the other side is sitting in the
room with you, listening to every word you say, isn't it?
Exception 1 -- Legal actions, causes of action or litigation involving a public governmental
body. First, it appears that there is no indication that these meetings involved a private
attorney-client communication between the body and its counsel. Certainly, that would be a
breach of confidence to bring the other side into a meeting between an attorney and a client, and
would eliminate the confidentiality purpose of that clause. But as to the first part of that
exception, I am aware of no threats of litigation against this august body in connection with this
executive search. So how can this exception apply?
Exception 3 -- hiring, firing, disciplining or promoting of particular employees ... where
personal information about the employee is discussed or recorded. Well, it would be news to
the world if the board was discussing particular candidates at this stage of the game. Certainly
the board is not making a claim it is going to hire as an employee of the esteemed body the
search firm's members? It seems highly unlikely this board is talking about individual
candidates at this point in time.
Exception 12 -- Sealed bids and related documents, until the bids are opened; There has been
no pronouncement by this board that it has called for sealed bids. How can you be considering
sealed bids when you have not called for sealed bids?
In short, to this reader, this entire factual situation seems highly suspicious. If you are
interviewing potential search firms to tell you about why they are the best candidates for the job,
why can you not do that in the public eye, so the public understands why you have chosen the
firm you have selected? What do you gain by doing it in secret? It makes one suspicious that
there's a reason for hiring a particular firm above and beyond their credentials when it's done in
As a matter of fact, i think that one of the attorneys for this esteemed organization used to handle
sunshine matters for the Attorney General's office. You'd wonder why he wouldn't have
questioned this a little more closely.
This particular body, in its earlier life, had problems with sunshine law issues on a regular basis.
There has been a period of great sunshine over this group in recent years. Looks like the clouds
are potentially gathering again.