Many Nebraska boards of education conduct their superintendent evaluations at their regular December meetings. Every year we get calls on the “best” or most legally compliant way to conduct these evaluations. This year we’ve fielded a number of calls specifically about the confidentiality of administrator and superintendent evaluation documents (drafts and the “final” evaluation) that are discussed by the school board at a public meeting.
While state law is not exactly clear on the matter, we believe that employee evaluations are personnel records that cannot be disclosed to unauthorized individuals without the employee’s consent, even if the evaluations are shared and discussed in open session of a board meeting. This means that they would not be subject to disclosure under Nebraska’s public record statutes, because they are not “public records.” Here’s why...
The Tangled Web We Weave
We start with the premise that, under the public records statutes, any interested person can examine or obtain a copy of a public record upon request. Neb. Rev. Stat. § 84-712. This then requires us to define what constitutes a “public record.” The Nebraska statute defining a public record provides: “[e]xcept when any other statute expressly provides that particular information or records shall not be made public, public records shall include all records and documents . . . of or belonging to” any political subdivision, including school districts. Neb. Rev. Stat. § 84-712.01 (emphasis added). Thus, if another “statute expressly provides that particular information or records shall not be made public,” such information or records are outside the statutory definition of public records and not subject to disclosure. So, does such a statute exist protecting the confidentiality of superintendent (and other school employee) personnel records, including evaluations?
Yep! Section 79-8,109 states: “No other person except school officials while engaged in their professional duties shall be granted access to [a school personnel file], and the contents thereof shall not be divulged in any manner to any unauthorized person.” This is exactly the type of statute that “expressly provides” that records should not be disclosed under public records laws. As a rule of statutory interpretation, where a statute specifically addresses an issue (as the personnel record statute does), it takes control over another statute that may generally apply (like the public records statutes). It’s even clearer in this case because the public records laws state plainly that you do not disclose records if any statute “expressly” prohibits disclosure.
Taken together, these statutes mean that the school board may discuss a Superintendent's evaluation at a board meeting without the instrument becoming a public record. In fact, the district must withhold the record from a person submitting a public record request unless the affected administrator, teacher, or employee authorizes disclosure in writing.
Discussing the Evaluation in Closed Session
While Section 79-8,109 prohibits disclosure of the records in a personnel file, this does not necessarily mean that discussion of the evaluation may take place in closed session. Section 84-1410 provides that:
“Any public body may hold a closed session by the affirmative vote of a majority of its voting members if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting. . . Closed sessions may be held for, but shall not be limited to, such reasons as . . . [e]valuation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting.”
(Emphasis added).
The Nebraska Attorney General’s Office (AG) has taken the position that boards should not go into closed session merely because issues warranting a closed session might arise. Instead, the AG has indicated that it interprets this statute as permitting the evaluation of personnel in closed session only if the discussion will include information that is so negative or damaging that a closed session is clearly necessary to avoid needless injury to the employee’s reputation. See File No. 09-M-154; Scottsbluff Pub. Schs. Bd. of Ed., February 19, 2010 (Board failed to clearly show that closed session was necessary where evaluation was overall “very favorable”.) Consequently, if the evaluation is wholly positive, it must take place in open session. Even if an aspect of the evaluation may be negative, the evaluation must still take place in open session if the Superintendent requests it to occur in open session.
We know how complex it has become to ensure compliance with Nebraska’s Public Records and Open Meetings laws, especially when the confidentiality of employee records is implicated. If you have any questions, please don’t hesitate to call your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.