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As Ken-Ton searches for chief, legal issue arises

All five members of the Kenmore-Town of Tonawanda School Board got together in the administration building Dec. 2 with a consultant who is going to help them find a new superintendent.

It was a promising start to a months-long search to fill the most important position in a struggling school district. A community forum is already scheduled for this month.

The trouble with the Dec. 2 board session, though, was that it violated the state's open meetings law, according to Robert J. Freeman, executive director of the state's Committee on Open Government. He said the session was the third time in less than a month that the board violated the open meetings law.

Board President Melissa M. Brinson was surprised to hear Freeman's opinion. She said the board is dedicated to conducting a "transparent" search to replace Superintendent Steven A. Achramovitch, who resigned in October.

"This board is very concerned we are being open and transparent with this process," she said. "We want to involve staff and community in an open and transparent manner."

So far, that hasn't been the case.

First, the board interviewed three consulting firms Nov. 20 without calling a public meeting. The board should have held a public meeting, then voted to go into executive session to do the interviews, Freeman said.

The board then agreed on which firm to hire, in the midst of informal discussions, Brinson said. The district sent out a news release Dec. 1 announcing the selection of LeaderFind, although the board is not scheduled to vote to hire the firm until Tuesday -- nearly two weeks after the "selection" was announced.

"The courts have said that consensus is action taken," said Freeman, the state's top authority on open meetings. "And action taken has to be memorialized in minutes, to record how each member cast his or her vote. There is case law saying that boards of education cannot take action in private. They must do so in public."

Finally, the board met with Daniel Porter of LeaderFind, a Cortland firm, on Dec. 2 to set the timeline for its search -- without giving any notice that it was having a meeting and without giving the public the chance to be there to hear the discussion.

"If indeed a majority of the board meets to conduct public business, they must call a meeting," Freeman said.

Ben Ferrara, the Syracuse lawyer representing the district, said the board has been operating legally. The consultant interviews did not have to be done within a meeting, he said.

Although the board reached a decision on its consultant outside of a meeting, all that matters is that the actual vote takes place in public -- which it will, on Tuesday, he said.

"Notifying that you've selected somebody is different from acting on it," he said. "Hiring has to be done at a board meeting."

And the board's Dec. 2 meeting did not need to be conducted in public, Ferrara said.

"If they were just getting their calendars out and establishing a timeline, I'm not sure that's something that needs to be done in a public meeting."

Brinson also defended the board's actions.

"We, as a board, conducted ourselves the way I believe many boards conduct themselves when they're conducting a search process for superintendent," she said. "And I stand by our process."

The board and LeaderFind have scheduled a public forum to get residents' opinions on what characteristics and background the next superintendent should have. The forum will be at 5:30 p.m. Dec. 18 in the Sheridan Building, 3200 Elmwood Ave.

Anne L. Marotta has been acting superintendent since Nov. 1, in addition to doing her regular job as assistant superintendent for curriculum and instruction. She is receiving a $1,000 weekly stipend for her work as acting superintendent, in addition to her $118,000 salary as assistant superintendent.

Marotta said she does not plan to apply for the superintendency.

e-mail: mpasciak@buffnews.com

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