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Berger evaluation being done in closed meetings

THE BALTIMORE SUN

Baltimore County's school board has been meeting in unannounced sessions since April to consider the annual evaluation of Superintendent Stuart Berger, who is in the final year of a four-year contract.

Board members say that's the way it's always been done.

Confirming that he might call a meeting for Sunday, board president Calvin Disney defended the practice as a legitimate way for the board to handle "executive functions." Dr. Berger's evaluation, he said, is "very nearly completed."

"There's nothing being done here that hasn't been done here before," said Mr. Disney, who became president July 11, but has been on the board since 1986. "There's nothing unusual. We always do the superintendent's evaluation in private."

Board member Alan M. Leberknight, who was president in the 1993-1994 school year, confirmed that the board previously met in unannounced sessions. "On five different years, with two different superintendents . . . the evaluation was done this way," he said, adding that such sessions are, however, "not routine . . . not normal."

It is common for the board to hold executive sessions -- those closed to the public and the media -- before and after public meetings. Often, the board calls an executive session to discuss personnel issues.

But the meetings that Mr. Disney acknowledged have taken place for the last several months -- and indeed for at least eight years -- are never announced to the public or media.

Although Maryland's open meetings law specifies that "a public body shall give reasonable advance notice" for open and closed sessions, Mr. Disney said that the board is acting legally because it is carrying out part of its "executive function" and cannot take any action.

"We're doing it the right way. It's not that I'm trying to hide," he added.

The open meetings law does have an exception for "executive functions," said Jack Schwartz of the state attorney general's office. "If a public body is engaging in an executive function it is perfectly lawful for them to have a secret meeting and tell no one."

But the definition of an executive function is ambiguous, he said. Making new policy is not an executive function, but administering existing policy can be, said Mr. Schwartz, counsel to the Open Meetings Compliance Board.

He would not comment on the legality of the school board's actions. But he said that if the board is following an existing law that requires school boards to evaluate superintendents, then the actions could be interpreted as an executive function.

Phillip H. Farfel, president of the Baltimore City school board, said his board members have dinner together before their meetings, but do not conduct business.

"The situation is that we basically have dinner up in the board office and then we go downstairs for the meeting," he said. "There was a time when there were pre-board meetings, but [now] we just don't do that."

Mr. Farfel acknowledged that, during dinner, the conversation might turn to topics that the board is dealing with. "Sure, people may talk about school system-related things, but there's nothing formal because there are no formal actions taken," he said.

Mr. Disney would not say how many unannounced meetings the county board has had since April, but he did confirm that Dr. Berger's evaluation was the reason for them. Beyond that, "I'm not going to be discussing what we are discussing," he said.

Board members have said repeatedly that they would not talk about renewing Dr. Berger's contract until they had completed his evaluation.

The superintendent's four-year contract runs through June 30. And although Dr. Berger said last week that he has "no interest in not being here" through the coming school year, the county has been swamped with rumors of a buyout or resignation that would remove the controversial superintendent earlier.

Mr. Disney said he did not think a decision on Dr. Berger's reappointment would be made before school starts on Aug. 28. He had said this spring that the decision would likely come during the summer.

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