Transparency: When should the identities of applicants for public employment be disclosed?

“The position is not designed to be a political position.” –Jefferson County, Alabama, Commissioner George Bowman

Florida has some of the most extensive “sunshine” laws in the country. Personnel records are open to public inspection unless exempted by law, including applications for employment, grievance records, resumes, salary information, and travel vouchers. If a public agency uses a private recruitment company to conduct an employment search for the agency, records made or received by the private company in connection with the search are public records. Florida courts have rejected claims that constitutional privacy interests operate to shield agency personnel records from disclosure, holding that the state constitution “does not provide a right of privacy in public records” and that a state or federal right of disclosural privacy does not exist. Read more at Government in the Sunshine.

In Michigan, information about a person being considered as a finalist for a high level public position is not of a “personal nature” for the purposes of the Freedom of Information Act (FOIA) privacy exemption. Once the list of candidates has been narrowed to those persons to be interviewed, the applicant’s right of privacy is outweighed by the public’s interest in knowing the applicants’ qualifications. Redaction can be used to separate confidential information from non-private information. Read more on the Michigan Attorney General’s site.

North Carolina courts, on the other hand, have held that the public does not have a right of access to know the names of candidates for public positions, even when the employing agency has narrowed to a short list of candidates under consideration. Public bodies must make hiring decisions in an open session, and therefore the public has a right of access to the meeting at which a vote is taken to hire a particular person. But the names of other candidates will forever remain secret. Read more at North Carolina Media Law.

Jefferson County, Alabama (population 658,466): The state Legislature passed a law in 2009 that mandated the county commission hire a county manager by April 1, 2011. In early 2011, the county hired Dallas-based Waters Consulting Group, a national search firm that specializes in recruiting city and county managers, to find qualified candidates. In March, lawmakers extended the deadline to June 1 to give the commission more time to find the best candidates.

On April 25, 2011, Jefferson County officials announced the selection of three finalists, selected from an initial field of 56 applicants, for the county’s first professional manager. County Commission President David Carrington identified two of the candidates. The third candidate asked that his name be withheld until next week because he had not yet notified his commissioners of his selection as a finalist. Each candidate was interviewed May 5-6 by the five commissioners. Hiring one of the finalists requires approval of four commissioners. Read more at al.com.

On May 8, a second finalist withdrew from the selection process. On May 11, 2011, a majority of Jefferson County Commissioners said that the remaining finalist to become the county’s first professional manager didn’t appear to have enough votes to be hired. At least two of the five commissioners said the county needs to ask a national search firm to come up with another slate of candidates. Commissioners, county department heads and other officials interviewed Patrick Thompson for the county manager’s job. Thompson is former county administrator for Hamilton County, Ohio, which contains Cincinnati. The following day, Thompson met with board members of the Birmingham Business Alliance, the sheriff’s office and county lawyers.

Commissioner Sandra Little Brown said the county needs more time to be deliberative, and Commissioner George Bowman said he wants more candidates to consider. Commissioner Jimmie Stephens said he thinks the jury is out on whether Thompson has enough votes, but he would like to give Thompson a chance at winning the job. Carrington said he’ll poll the commission Friday, and if Thompson has the votes for the job he’ll have a public discussion and official vote. If not, Thompson will be informed. State law gives the commission another 120 days to look for another candidate if one did not get a supermajority of commission votes by June 1. Brown said the county may need additional time to hire the right person. Read more at al.com.

On May 13, the last remaining finalist for Jefferson County’s first professional manager removed his name from consideration.

By September 13, 2011, a decision on whether to hire Hoover Mayor Tony Petelos as Jefferson County’s first professional manager was delayed after two commissioners refused to support the nomination. Commissioners Sandra Little Brown and George Bowman both said they didn’t oppose Petelos but questioned how the matter had been handled by Commission President David Carrington.

A resolution to put Petelos’ nomination to a vote of the commission unanimously passed the county’s administrative services committee, but some commissioners said later it was being rushed. No one raised concerns during the committee meeting, in which Petelos was interviewed for nearly an hour by all five commissioners, Carrington said. Bowman, who seconded the Petelos nomination in committee, said he changed his mind “in retrospect.”

The Alabama Legislature has given the commission an Oct. 1 deadline for making an offer to a prospective county manager. Carrington said he believes that could be extended by another 120 days if a selection is not made in the next three weeks. It’s unclear whether Petelos will have a supermajority by then. Brown and Bowman said many concerns remain. Read more at al.com.

Just this morning, the Jefferson County Commission unanimously selected Hoover Mayor Tony Petelos this morning to become Jefferson County’s first professional manager. The vote was taken without discussion or debate. Petelos will begin county manager duties Monday at a salary of $224,000. Read more at al.com.

Luzerne County, Pennsylvania (population 320,918): Manager matters dominated a June 2011 meeting of the Luzerne County home rule transition committee. After a debate, the committee approved an advertisement for county manager candidates, but might later reopen the subject of whether and when to reveal their names. Members differed on whether disclosing all the applicants’ names would be in the interest of transparency for the taxpayers or would scare away the best candidates. The vote was 4-2 with Rick Morelli and Chairman Jim Bobeck opposing to approve the advertisement with language by Susan Shoval, which says, “Position finalists must be willing to allow public disclosure of their resumes in order to move forward with the process.”

Shoval said she believed disclosing all candidates’ names would eliminate a lot of good ones, but that finalists must be willing to have their names released, as is done with college presidents, for example. On the other hand, Morelli felt transparency is the best policy. Bobeck opposed because he didn’t like the idea of disclosing names. Committee members were apprehensive because there were initially only six at Thursday’s meeting.

Before the committee’s discussion, several residents spoke against advertising the names of county manager candidates. Ray Gustave of West Wyoming said while he is an advocate of openness in government, he didn’t think the committee would get top-tier candidates who are willing to jeopardize their jobs in this economic climate. Ed Chesnovitch also opposed publicizing the names, saying it could lead to a lawsuit. Gene Keller of Dallas Township agreed, saying a headhunter told him at least 60 percent of the best candidates will not apply if their names are disclosed. Read more at The Standard Speaker.

Florence County, South Carolina (population 136,885): Florence County’s search for a new administrator, to replace Richard Starks who is retiring at the end of his contract this fall, has been more confusing and secretive than such searches often are because of the presence of Florence County Council Chairman K.G. “Rusty” Smith Jr. as a candidate for the post — the only announced candidate for it to date.

The candidacy of a sitting council member would complicate the issue, no matter who he or she was. South Carolina and local law don’t really address the idea, except by prohibiting it in a simultaneous instance, but it clearly fogs up the ethical windows because the selecting body (county council) includes a potential candidate. The situation is made still more complex by the persona of Smith, a councilman since 1986 and the powerful chairman of that body for almost a decade.

What does the county administrator do? He or she manages Florence County government and its almost $50 million a year budget. An administrator works with the elected officials of the county to help make sure the policy they dictate — theoretically, the will of the people — is executed in an efficient, and fiscally prudent way, by the county’s many departments and divisions.

Who is supposed to hire the administrator? The county council is delegated this responsibility. It’s the only position in county government the council hires solely and directly. That’s fairly standard practice across the state.

What are the job requirements? This would vary from county to county, but typically administrators have public administration degrees and some significant experience with budgets and accounting.

How is the decision being made here? A committee appointed by Smith is in charge of sorting through candidates and making a formal recommendation to council which will then make the final decision. That’s the public version, anyway.

Does the law allow Smith, or any other council member, to be appointed to administrator, or any other county position? As we have reported in recent weeks, there is a difference of opinion in this area. We’re not lawyers, but it seems clear to us it’s illegal to hold both an elected and an appointed position (or two elected positions) at the same time. It’s also clear that it’s unethical for Smith, or anyone else, to be involved in making an appointment decision that could affect him. The problem there, of course, is discerning whether he was involved. Some might say, “Of course he was/is, even if he’s not on the committee,” but that’s going to be pretty hard to prove.

The state’s Freedom of Information Act requires county officials to reveal the identities, and some of the qualifications of, “not less than three” candidates for the post before a final decision is made. We delivered a Freedom of Information Act request to county officials several weeks ago, asking that all candidates be disclosed. That is allowed by the FOI Act, but it is not required.

Unfortunately, county officials have indicated they will provide only “discloseable information,” which shows a continued lack of transparency, and, in our opinion, a lack of understanding with regard to the FOI requirement. The county must disclose at least three candidates. It could disclose more.

We think it should do more to prevent the tainting of a critical decision on Florence County’s path to progress. Read more at SCnow.com.

St. Helena, California (population 5,814): The St. Helena City Council agreed on June 28, 2011, not to release the names of people who have applied for the city manager job, but denied rumors that councilmembers are working behind the scenes to support a local candidate. On the advice of City Attorney John Truxaw, the council turned down a request by attorney Lester Hardy to disclose the names of applicants for the job. Hardy initially asked for all applications for the city manager position. After Finance Director and Interim City Manager Karen Scalabrini objected on the grounds that making the names public could jeopardize the applicants’ current jobs, Hardy limited his request to applicants who are self-employed, retired or unemployed. Truxaw told the council that each application is confidential, regardless of the applicant’s employment status.

Truxaw said releasing any of the names would compromise the council’s right to consider the applications in closed session. Hardy said his request was prompted by rumors that there’s a “behind-the-scenes effort to promote one or more applicants for the job.” Mayor Del Britton insisted that the hiring process is “straightforward” and “fair and open.” He said the council hired a respected search firm, Bob Murray & Associates, to screen applicants and recommend top candidates based on their qualifications. The rumors about secret back-room deals “have no validity in fact whatsoever,” Britton said.

Councilmember Ann Nevero also denied the rumors. She said the search process is taking longer than she’d like, but the council is following it because “it’s what people want and it’s the right thing to do.” Read more at the Napa Valley Register.

 

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