UPDATED: Does the secret meeting of Steiner's waiver committee violate the state Open Meetings law?

The Times points out today that three members out of the eight appointed to a panel to advise Commissioner Steiner on whether to grant a waiver to Cathie Black to become NYC Schools Chancellor used to work for the DOE under Klein; several more are at institutions that receive city funds and/or have benefited from Bloomberg's personal largesse.

Even more troubling, the panel will meet in secret on Tuesday, showing that the rushed and closed process that has marred Black's selection from the beginning continues unabated.

Yet the meeting of this committee may be subject to the NY State Open Meetings law. See here, from the
NY Dept. of State FAQ on the law:

Who is covered by the Law?
The Open Meetings Law applies to "public bodies." That term is defined to include entities consisting of two or more people that conduct public business and perform a governmental function for New York State, for an agency of the state, or for public corporations, such as cities, counties, towns, villages and school districts. Committees and subcommittees of these entities are also included within the definition. Consequently, city councils, town boards, village boards of trustees, school boards, commissions, legislative bodies, and committees and subcommittees consisting of members of those groups all fall within the framework of the Law.

Since this committee is conducting both public business and a governmental function for the State Education Department, which is a state agency, the intent of the law seems clear that its meetings should be open to the public. This is especially the case since the appointing of such an advisory body is not discretionary on Steiner's part, but mandated according to the state regulations concerning the granting of any waiver:
Section 80-3.10.* Certificates for the educational leadership service.
(b) (iii) Alternative route two, the certification of exceptionally qualified persons through screening panel review. The Commissioner of Education, at the request of a board of education or board of cooperative educational services, may provide for the issuance of a professional certificate as a school district leader (superintendent of schools) to exceptionally qualified persons who do not meet all of the graduate course or school teaching requirements in subparagraph (i) of this paragraph, but whose exceptional training and experience are the substantial equivalent of such requirements and qualify such persons for duties of a superintendent of schools.

Prior to the appointment of any such individual, the board must obtain the approval of the commissioner. In its formal request to the department the board must submit its resolution noting approval of the request, the job description, its rationale for requesting such certification of the individual, a statement identifying the exceptional qualifications of the candidate, the individual's completed application for certification, vitae and official transcripts of collegiate study. The certificate, if issued, will be valid only for service in the district making the request. The commissioner will refer the materials submitted by the board to a screening panel consisting of representatives of the department and appropriate educational organizations for review and advice.

What do you think? Should this committee meet in private? Leave a comment!

UPDATE: Over the weekend I emailed Robert Freeman of the NY Dept. of State, the expert on the open meetings law. Below is his response; it seems that holding this meeting in private does not violate the law; whether it is optimal as a matter of public policy is another question. Meanwhile, additional questions have arisen concerning potential conflicts of interest among the panelists, see today's Times here.

From: Freeman, Robert (DOS) [mailto:Robert.Freeman@dos.state.ny.us]
Sent: Monday, November 22, 2010 8:41 AM
To: Leonie Haimson
Subject: RE: question re open meetings law and SED screening panel

Judicial decisions indicate that an advisory body as described in the article does not constitute a “public body” and, therefore, is not subject to the Open Meetings Law. Even if the Open Meetings Law applied, the group could discuss the matter during an executive session under 105(1)(f) of that statute. The cited provision permits a public body to conduct a closed session to discuss “the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal or a particular person or corporation.”

I hope that the foregoing serves to clarify your understanding and that I have been of assistance.

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