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HIRING A MANAGER/CHIEF UNDER OPEN MEETINGS & OPEN RECORDS ACTS

HIRING A MANAGER/CHIEF UNDER OPEN MEETINGS & OPEN RECORDS ACTS. Presented by Richard Lyons. 1. WHO needs to conduct search? 2. WHY do you conduct search? 3. HOW do you conduct search? 4. WHEN can you make decision to hire? 5. WHAT do you do after decision is made?.

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HIRING A MANAGER/CHIEF UNDER OPEN MEETINGS & OPEN RECORDS ACTS

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  1. HIRING A MANAGER/CHIEF UNDER OPEN MEETINGS & OPEN RECORDS ACTS Presented by Richard Lyons

  2. 1.WHO needs to conduct search?2. WHY do you conduct search?3. HOW do you conduct search?4. WHEN can you make decision to hire?5. WHAT do you do after decision is made?

  3. WHO NEEDS TO CONDUCT THE SEARCH? Any local government (special districts included) hiring a Chief Executive Officer (CEO), and that appoints a Search Committee.

  4. WHO NEEDS TO CONDUCT THE SEARCH? SEARCH COMMITTEE Q: If we don’t appoint a committee, do we have to comply with statutes? A: If a search is conducted, you have a “Search Committee.”

  5. WHO IS A CEO? (legal definition) A person in “non-elective employment position with a … political subdivision [of state] except employment positions in [a classified system or civil service system].” (§ 24-72-202 (1.3), C.R.S.)

  6. WHO IS A CEO? (functional definition) • Whoever fills a position to which the Board has lawfully delegated total management and executive functions.

  7. WHO IS A CEO? • General Manager • Executive Director • Chief Operating Officer (COO) • Fire Chief ?

  8. WHO IS A CEO? • A Fire Chief of large department who has been delegated all management authority for District operations/business/affairs (in addition to command of fire/rescue department) is a CEO.

  9. WHO IS PROBABLY NOT A CEO? • Uncompensated volunteer chief of volunteer department who lacks management or operational authority for District operations/business/affairs, and only has responsibility for fire-rescue operations.

  10. WHO IS PROBABLY NOT A CEO? • Accounts manager water/sanitation district. • Golf course manager. • Board secretary/administrative assistant. • Other middle managers.

  11. WHY A SEARCH? • Finding the right fit is critical to success. • Good leaders DO make a difference! • Opportunity to strengthen relationship with taxpayers/customers.

  12. WHY A SEARCH? • Eliminates criticism of “buddy” system. • Protection from legal claims of discrimination. • Establish transparency.

  13. WHY A SEARCH? • OPPORTUNITY FOR BOARD REFLECTION: • Why did we lose our CEO? • Noncompetitive compensation package? • Lack of Board support or direction? • Micromanagement?

  14. WHY A SEARCH? • An “in-house” search is permissible. • Must still establish process and timelines. • Follow self-imposed process to promote credibility.

  15. HOW IS SEARCH CONDUCTED? • Federal limitations. • State requirements.

  16. HOW IS SEARCH CONDUCTED? • FEDERAL LIMITATIONS: • Can not discriminate on basis of race, color, creed, gender, disability, religion, or age (Colorado adds “sexual preference”).

  17. HOW IS SEARCH CONDUCTED? • FEDERAL LIMITATIONS: • No “affirmative action” unless otherwise required by court decree or agreement. • Probably no need to state “equal opportunity employer,” unless…

  18. HOW IS SEARCH CONDUCTED? • STATE REQUIREMENTS: • In an open meeting, Board shall: • Establish search goals. • Written job description. • Requirements for job. • Deadline for applications. • Selection procedures. • Timeframe for Board decision. • (§ 24-6-402(3.5), C.R.S.)

  19. HOW IS SEARCH CONDUCTED? • JOB DESCRIPTION: (suggestions) • Define or List: • CEO’s major duties. • Expectations of Board. • Physical requirements (ADA essential functions). • Any particular objectives? (e.g. create capital construction 5 year plan)

  20. HOW IS SEARCH CONDUCTED? • POSITION REQUIREMENTS (suggestions) • Educational level. • Experience (years and/or previous jobs). • Specific qualities unique to District’s needs. • References. • Resumes/CV’s or application form?

  21. HOW IS SEARCH CONDUCTED? • ESTABLISH DEADLINES/TIMEFRAMES: • Establish both. • OPENING date as well as the required CLOSING for submittals. • Target date for final decision. • Don’t rush! • Date of disclosure of finalists (per Open Meeting laws) will dictate earliest date of contract.

  22. HOW IS SEARCH CONDUCTED? • ESTABLISH PROCEDURES: • Who will be on the Search Committee? • Entire Board? • Board sub-committee? • Board and non-board members? • Only non-Board members? (to make recommendation only)

  23. HOW IS SEARCH CONDUCTED? • ESTABLISH PROCEDURES • Determine if Board/Committee will prepare “brochure” or “fact sheet”. • Plan for contract (terms, length, moving expenses?) • Set a budget.

  24. HOW IS SEARCH CONDUCTED? • ESTABLISH PROCEDURES: • Brochure vs. Fact Sheet: • District description. • Budget, valuation history, growth, etc. • Debt. • Employees. • Area/customers. • Board members (terms, background, officers). • “Sell” the District!

  25. HOW IS SEARCH CONDUCTED? • ESTABLISH PROCEDURES: • Consult your legal counsel: • - draft a model employment contract • - ready to fill-in-the-blanks • Decide salary range. • Seek legal counsel on executive session issues.

  26. HOW IS SEARCH CONDUCTED? • ESTABLISH PROCEDURES • Getting the word out: • Ads – where? • Website. • Professional associations of managers/chiefs. • SDA. • Direct targeting? (Mass mailing?)

  27. HOW IS SEARCH CONDUCTED? • APPLICATION MANAGEMENT: • One address! • Enforce “opening” date. • Assure confidentiality.

  28. HOW IS SEARCH CONDUCTED? • APPLICATION MANAGEMENT: • § 24-72-204 (3)(a)(XI)(A) C.R.S., exempts applications of non-finalists. • Not public records. • Keep confidential!

  29. HOW IS SEARCH CONDUCTED? • WHY CONFIDENTIAL? • CONFIDENTIALITY = BETTER APPLICANT POOL

  30. HOW IS SEARCH CONDUCTED? • APPLICATION MANAGEMENT: • Enforce deadlines. • Potential legal issues. • Don’t keep it open waiting for a favorite candidate.

  31. HOW IS SEARCH CONDUCTED? • Meetings of Search Committee: • Open Meeting Law applies (notice, agenda, minutes). • Executive Session: to consider “documents which are protected by the mandatory nondisclosure provisions of Open Records Act.” • (§ 24-6-402(4)(g), C.R.S.)

  32. HOW IS SEARCH CONDUCTED? • Search Committee can meet in executive session to: • Review. • Discuss applications. • Determine if requirements met. • Establish short list of finalists.

  33. HOW IS SEARCH CONDUCTED? • CONDUCTING THE REVIEW: • First, the Search Committee Two Step: • REJECT those not meeting requirements. • REVIEW those that do.

  34. HOW IS SEARCH CONDUCTED? • CONDUCTING THE REVIEW: • Second, Search Committee Three Step: • NO • MAYBE • YES (short list)

  35. HOW IS SEARCH CONDUCTED? • CONDUCTING THE REVIEW: • Expect “movement” from discussion: • from YES to MAYBE • from MAYBE to YES

  36. HOW IS SEARCH CONDUCTED? • CONDUCTING THE REVIEW: • Search Committee can (should) do the Three Step at least twice (suggested). • A wise chair cautions against over- inclusiveness.

  37. HOW IS SEARCH CONDUCTED? • FINAL REVIEW: • Shorten the preliminary “SHORT LIST.” • Would Committee be willing to recommend any of these? • There is no “honor” being on short list if not selected. • Finalize SHORT LIST.

  38. HOW IS SEARCH CONDUCTED? • DISCLOSURE OF SHORT LIST: • § 24-6-402 (3.5), C.R.S., requires disclosure of names of finalists on short list. • Need not publish – just “MAKE PUBLIC”. • Recommend posting list like agenda.

  39. HOW IS SEARCH CONDUCTED? • DISCLOSURE OF SHORT LIST: • Mandatory disclosure requirement applies even if private firm is assisting in the search.

  40. HOW IS SEARCH CONDUCTED? • DISCLOSURE OF SHORT LIST: • Applications of those on short list are now public records. • Public and press can inspect and copy. • Letters of reference remain exempt from public disclosure. • (§ 24-72-204(3)(a)(XI)(E), C.R.S.)

  41. HOW IS SEARCH CONDUCTED? • If only 3 or fewer applicants or candidates possess minimum requirements, then ALL are “finalists.”

  42. HOW IS SEARCH CONDUCTED? • THE GAMES THEY PLAY! • A short list of one? • “We don’t want anyone but you!?”

  43. HOW IS SEARCH CONDUCTED? • Short List Interviews: • Search Committee and Board? • Board only? • Board plus staff members? • Members of public? • Other CEO’s in community?

  44. HOW IS SEARCH CONDUCTED? • After Short list released, can interviews of finalists be in executive session? • “Personnel” matters exception? • Do you have to have an “employee” to have a “personnel” matter?

  45. HOW IS SEARCH CONDUCTED? Does § 24-6-402(3.5), C.R.S., suggest interviews in executive sessions may be permissible?

  46. HOW IS SEARCH CONDUCTED? “ Nothing in this subsection (3.5) shall be construed to prohibit a search committee from holding an executive session to consider appointment or employment matters not described in this subsection (3.5) and otherwise authorized by this section.” But…

  47. HOW IS SEARCH CONDUCTED? • If not an employee, then what is the “otherwise authorized” exception? • No appellate decision. • One district court ruling.

  48. HOW IS SEARCH CONDUCTED? • For STATE public bodies: • Must hold public session for interviews re: appointment or employment of a public official or employee; • UNLESS the applicant requests an executive session.

  49. HOW IS SEARCH CONDUCTED? NO SIMILAR EXCEPTION FOR LOCAL GOVERNMENTS! Potential applicants are NOT employees.

  50. HOW IS SEARCH CONDUCTED? Colorado Press Association’s attorney: “…we take the position that local public bodies may not ever conduct an interview session with a candidate behind closed doors under the ‘personnel matters’ exception.”

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