STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6091

August 18, 1982

OPEN MEETINGS ACT:

Private meetings of committees of members of a board of education to evaluate performance of superintendent

A board of education of a school district may not conduct the public business of evaluation of the performance of the superintendent at private meetings of two or more committees of the board, each composed of less than a quorum of the members of the board and including the president of the board to provide continuity in the evaluation deliberations, from which the members of the public are excluded.

Honorable William Faust

Senate Majority Leader

The Capitol

Lansing, Michigan 48909

You have requested my opinion on a question pertaining to the Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq; MSA 4.1800(11) et seq. Your letter states that a local board of education proposes to evaluate the school superintendent by means of dividing the school board into committees, each of less than a quorum of the board. These committees would then meet on different nights. In addition, the board of education proposes to name the president of the board as a member of each committee so as to provide continuity in the evaluation deliberations. Each committee meeting would be private and members of the public would not be permitted to attend.

Based upon these facts, your question is:

A public body must meet in a session open to the public to consider the public business of evaluation of its officers and employees. 1976 PA 267, supra, Sec. 3(1). The right of the public to know how a public officer or employee is performing his or her duties is superior to any claim of privacy by the public officer or employee. OAG, 1979-1980, No 5608, p 496 (December 17, 1979)

Your question is substantially identical to the question considered and answered in OAG, 1979-1980, No 5788, p 1015, 1017 (September 23, 1980), where a public body divided itself into two committees, each composed of less than a quorum, in order to discuss the qualifications of candidates considered for a position which was to be filled by the public body. The opinion noted that, while a quorum of the full public body was never physically present in the same room at the same time, the effect of their arrangement was to permit the public body to collectively deliberate towards a resolution of public business and, accordingly, amounted to a 'constructive' quorum. The opinion concluded that

Although the meetings in question in OAG, 1979-1980, No 5788, supra, were held in different parts of the same building on the same day, there is no reason why the same conclusion would not apply if the subcommittee meetings were held on separate days.

1976 PA 267, supra, requires that the evaluation of the performance of the superintendent of a local school district by the employing board of education must be conducted at a meeting open to the public. It may not be circumvented by dividing the board of education into committees of the board, each containing less than a quorum of the board to perform the evaluation with the president of the board present at each meeting to provide continuity for all committee meetings.

Evaluation of the performance of the duties of the superintendent of the district by the members of the board of education is a deliberation of public business despite the fragmented manner in which the board proposes to conduct its public business. Members of the public must have access to such deliberations as required by 1976 PA 267, Sec. 3(1), supra.

It is my opinion, therefore, that pursuant to 1976 PA 267, supra, a board of education of a school district may not conduct the public business of evaluation of the performance of the superintendent at private meetings of two or more committees of the board, each composed of less than a quorum of the members of the board and including the president of the board to provide continuity in the evaluation deliberations, from which the members of the public are excluded.

Frank J. Kelley