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Colorado bill would allow school districts, universities to name one finalist for their top job

University of Colorado President Mark Kennedy, wearing a suit, sits at a table with other people.
The selection of Mark Kennedy as the sole finalist for CU president led to a lawsuit under current public records law.
Helen H. Richardson / The Denver Post

As the Poudre School District in northern Colorado narrowed its search for its next superintendent, the school board announced three finalists for its top job. The Jefferson County School District, in contrast, named just one.

Colorado law requires that public entities — such as school districts and public colleges and universities — release the names of finalists for top executive positions 14 days before a formal job offer is made.

But the law has been unclear, with conflicting court rulings on whether a governing body can name just one finalist or whether everyone who made it to the final round of consideration should be treated as a finalist, with their names and applications subject to release under public records law. At stake are two competing values: giving privacy to job candidates and ensuring openness to the public.

A bill making its way through the Colorado General Assembly would settle the question on the side of privacy, repealing a portion of public records law that says if three or fewer applicants meet the minimum qualifications, all of them should be considered finalists.

House Bill 1051 easily passed the state House last month with bipartisan support. The Senate State Affairs Committee advanced the bill to the full Senate Thursday on a 3-2 vote.

The proposal would allow public entities like school districts, public colleges and universities, and cities and fire districts, to name just one finalist for their top executive position, such as superintendent, president, or city manager. The names and applications of other candidates, even ones who were seriously considered for the job, would no longer be subject to disclosure under public records law.

State Rep. Shannon Bird, a Westminster Democrat, said she decided to sponsor the legislation after being approached by the Colorado Association of School Boards. Some school board members felt their districts were having a hard time attracting enough applicants for their superintendent positions because potential candidates feared their current employer would find out they were looking for a new job. If they didn’t get the new job, they would be left in an uncomfortable position.

It’s a concern that’s frequently cited by proponents of naming a sole finalist.

“We want transparency in government processes as they’re making a hiring decision,” Bird said. “We don’t want cronyism. But there is also a private individual’s legitimate privacy interest in being able to apply for jobs. And then there is the public interest in public entities being able to attract diverse, qualified candidate pools.

“It’s these competing interests that we’re trying to balance.”

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, agrees there are competing interests, but he sees transparency as ultimately more important.

The bill, he said, “makes these appointment processes essentially secret. If they can name only one finalist, the public has no opportunity to see who was seriously considered for these positions, no opportunity to compare, no opportunity to look into their backgrounds, and no opportunity to evaluate how their elected officials are making those decisions.”

Chalkbeat is a member of the Freedom of Information Coalition.

The question of whether current law requires the release of multiple finalists has been the subject of several lawsuits. Universities and school districts have named sole finalists for years, sometimes saying that other candidates withdrew rather than be named.

In 2019, a parent in the Academy 20 school district in Colorado Springs sued to find out the names in the final round of consideration for superintendent after the district named just one finalist. A district court judge agreed with the plaintiff and interpreted the law as requiring the district to name more than one finalist.

The Daily Camera newspaper in Boulder also won an initial victory when it sued to gain access to the names of finalists for University of Colorado president. The Board of Regents had named only Mark Kennedy as a finalist in 2019. But the Colorado Court of Appeals overturned that ruling in a split vote. The Daily Camera has asked the Colorado Supreme Court to take up the issue.

Many Colorado school districts have had to fill superintendent vacancies this year, and they’ve taken different approaches. The Jefferson County and Cherry Creek school districts both recently named sole finalists, while Poudre, Douglas County, and the small Alamosa district in southern Colorado all named three to four finalists for superintendent.

Sue Harmon, president of the Jeffco school board, did not respond to an interview request about the decision to name just one finalist. The district denied a public records request from Chalkbeat seeking the names of the four candidates who advanced to the final round of consideration.

Education activists and community members in Denver objected to the selection of just one finalist in 2019 when Susana Cordova became superintendent. Now looking again for a leader, the school board has promised to name multiple candidates.

Christophe Febvre, president of the Poudre School District board, said board members there decided early on they would name multiple finalists for superintendent, and he feels the district found good candidates regardless.

“I have viewed the superintendent search as a really important moment in time where we are touching base with our community,” he said. “We did want a process that allowed for public engagement.”

The process brought some complications. When Poudre announced finalists, one quickly withdrew, telling his Ohio school community, “This was an opportunity that I didn’t seek, but felt like was something I needed to explore if I was to remain true to the very advice I always tell young leaders and my own kids — which is to take risks and be vulnerable. … Still, there’s no place I’d rather be than Mason.”

The Poudre school board supports the sole finalist bill, and Febvre said he thinks school boards should have flexibility. Febvre said the law needs to be clearer so that everyone understands what is public and what is not.

In recent weeks, both Arapahoe Community College and the Community College of Aurora announced multiple finalists for their open president positions — one candidate is even a finalist for both jobs.

Joe Garcia, chancellor of the Colorado Community College System, said input from faculty and others is crucial to making a decision.

“We think it’s important for the college community to weigh in on who should lead the college, and we can’t do that unless we name those people and bring them in and provide the opportunity to meet them and ask questions,” Garcia said.

At the same time, it does affect who applies, with sitting presidents and nontraditional candidates in particular more likely to bow out before they would be named. Garcia said he would have been much less likely to apply for his own job as chancellor if he could have been named among several other candidates and then not gotten the job.

“It always serves the public interest to have an idea of who was considered,” said Garcia, who doesn’t have a position on the bill. “Just as a citizen and a CU graduate, I was interested in who else was interested in the [CU president] job, but I also understand why they didn’t want to name multiple finalists.”

Parker Baxter, a scholar in residence at the University of Colorado School of Public Affairs, said that even if the law changes to clarify that sole finalists are permitted, Colorado is still more open than some states, with a 14-day period during which the public can research a candidate and raise concerns.

“We do have the ability to vet the candidates,” said Baxter, who leads the Center for Education Policy Analysis.

Baxter said the authority to hire a top executive rests with elected bodies, and the public has the final say when people vote in school board elections or for the Board of Regents.

But Judith Wilde, a professor at George Mason University who has researched university president search processes, said the selection of a single finalist can feel like a done deal, even if there is a week or two between the announcement and finalizing the offer.

“For many people, that is almost too late,” she said. “It can feel like it doesn’t matter at that point what you find out.

“What would people say if the governor were put into position in this manner? Or the mayor? They wouldn’t like it.”

Chalkbeat reporter Yesenia Robles contributed to this report.

This story has been updated with the results of the Senate State Affairs Committee hearing.

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