Attorneys say Berkeley School Board violated Freedom of Information Act by voting in executive session
Berkeley County School board members violated the state Freedom of Information Act when they decided in a closed-door meeting that Superintendent Rodney Thompson’s job performance exceeds expectations, according to media attorneys.
The law allows public bodies to discuss personnel matters in executive session, but prohibits them from making decisions.
“It sounds like they came to some consensus in the executive session that is improper,” said S.C. Press Association attorney Jay Bender. “That clearly seems to be a vote.”
Bender said the board would have stayed within the law if it had voted on “exceeds expectations” in open session. “To reach that decision in executive session is inappropriate and illegal,” he said.
Press Association Executive Director Bill Rogers and Post and Courier attorney John Kerr agreed.
“I would think they must have come up with a consensus via polling, which is not allowed in executive session,” Rogers said.
“A rose by any other name is still a rose,” Kerr said. “The motion shows the vote and the outcome of the evaluation was determined behind closed doors in secrecy. The public vote was for show. The procedure violated the law.”
School Board Chairwoman Kathy Schwalbe said the discussion in executive session was about whether Thompson had met his goals, and the board needed to agree on the wording so that a statement could be written.
“We wrote the draft statement in executive session,” she said. “We had to have something to vote on (in public session). Everything in that letter and in that motion is what we voted on when we came back out.”
She said the board had agreed to decide whether Thompson did not meet, met, or exceeded expectations, and “using those, ‘exceeds expectations’ is what we decided upon as a group.”
Board members did not evaluate Thompson individually, and there were no other written materials except a report Thompson presented at a Feb. 14 school board meeting, she said.
As a result of the April 10 evaluation:
Thompson will be given a 5 percent pay increase starting July 1, bringing his salary to $157,500 annually.
His contract will be extended one year, to June 30, 2015.
His monthly automobile allowance will increase from $850 to $1,100.
The school district will make a contribution to an annuity of his choice in an amount equivalent to 5 percent of his current base salary.
A statement from the Berkeley County School said, “The Board Chair facilitated the discussion, which focused on the extent to which the District’s goals and focus areas were achieved. Board members did not complete any forms or written documentation in connection with the evaluation, other than the statement which you have already received.”
Schwalbe said the board members are “highly conscious of serving our community in the highest possible standards” and “making sure we’re doing things the right way and that we’re setting good examples for our employees and our students.”
Attempts to reach the other seven board members in attendance were unsuccessful.
High court ruling
The issue is significant because it comes just one year after The Post and Courier gained access to board members’ 2007 individual evaluations of then-Superintendent Chester Floyd, who received a “commendable” review from five of nine board members that year.
When the district refused to give the newspaper access to the evaluations, The Post and Courier filed a lawsuit that ultimately cost the district more than $73,000 before it decided in April 2011 to release the evaluations.
In 2007, the district said the evaluations were protected by attorney-client privilege because they were compiled and maintained by an attorney, who conducted the evaluation to keep the comments anonymous.
Bender said at the time that there was no reason to use an attorney to compile the information other than to claim attorney-client privilege to skirt the Freedom of Information Act.
In March 2011, the S.C. Supreme Court ruled in favor of the newspaper, and the following month the board voted 6-0 to waive the attorney-client privilege it believes protects the documents. Board members Doug Cooper and Frank Wright did not attend the meeting, and board member Wilhelmina Moore abstained.
Schwalbe said at the time that the district couldn’t continue spending money fighting the lawsuit.
Floyd left the district in January 2009 and is now is the superintendent for Lexington County School District 3.
He was succeeded by Anthony Parker, who quit abruptly in January 2011.
Thompson, who has been in education since 1990 and with the Berkeley district as a teacher, coach and administrator since 2002, was promoted to superintendent on Feb. 14, 2011.
This time the board did not hire a law firm to compile the evaluation, which is required annually by the superintendent’s contract.
Instead, Schwalbe said, she centered discussions on Thompson’s “Report to the Community,” which was presented at a board meeting on his one-year anniversary as superintendent and detailed the state of the district and his progress during the year.
Schwalbe said she called board members in the weeks after that “to ask open-ended questions” that formed the basis for a discussion of Thompson’s performance during the closed session.
Closed and open
After the nearly two-hour executive session April 10, during which the board also discussed student attendance appeals and expulsion appeals, members met with Thompson for a half-hour.
When they returned to open session, Cooper made a motion, seconded by Phillip Obie II, that “as a result of Superintendent Rodney Thompson’s overall ‘exceeds expectations’ evaluation for the 2011-2012 school year, as determined by the board during executive session this evening,” he receive the pay raise and other perks.
The motion passed unanimously, and the board applauded Thompson afterward. Member Sheldon Etheridge was not at the meeting.
The board also released a statement dated April 10 and signed by Schwalbe, that said, in part, “The Board is pleased to report that Mr. Thompson received an overall ‘exceeds expectations’ performance evaluation. The Board is pleased with the progress made to date in all established goals.”
A longer, more detailed letter to Thompson, also dated April 10, detailed his progress toward his goals for this school year and sets new goals for next year.
“In a short period of time, you have developed strong leadership skills and handled your responsibilities as superintendent in a manner that is thoughtful and deliberate,” said the letter, which was signed by Schwalbe.
Reach Brenda Rindge at 937-5713 or www.twitter.com/brindge.