Public Transportation Board Effectiveness: A Self-Assessment Handbook (2004)

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10 SECTION 3 DECISIONS NECESSARY TO IMPLEMENT BOARD SELF-ASSESSMENT TO WHOM SHOULD THE ASSESSMENT BE DISCLOSED? A critical concern of many boards is the confidentiality of the self-assessment. Many boards do not have wide discre- tion under their state’s sunshine laws, and this may affect their predisposition for information sharing. Other boards may have legal discretion and a mutual commitment to maintain confi- dentiality. The Handbook does not mandate either openness or confidentiality, and the self-assessment process can be con- ducted under either approach. Disclosure Boards that see merit in public disclosure of the assessment process act for several reasons, including the ones listed below. Board effectiveness is a topic that interests and concerns the public. A theme that underlies sunshine laws and public involvement is that the transit operation is ultimately owned and funded by, and operated for, the benefit of the public; the agency (including its board) is responsible to the public. An assessment of its effectiveness is arguably the highest-level and most far-reaching topic considered by the board and should therefore be a topic of most immediate relevance and interest to the public and to the board’s appointing entities. Public disclosure of the process will improve the respon- siveness of the process. Interaction with the public in prepa- ration for board meetings, and even during the public comment portions of board meetings, can improve the objectivity and perceptiveness of the board’s assessment of itself. Further, the public’s understanding of the board’s strengths, efforts, and opportunities for improvement will enhance public under- standing and action on many other issues. Public disclosure will reinforce constructive action. One of the most useful results of the self-assessment process is the col- lective recognition by the board of concerns that individuals might have only articulated privately if there were no appro- priate public forum for bringing such issues to the board’s attention. Such concerns may be sensitive enough to be skirted by the board or suppressed if discussed only in a closed ses- sion; an open-session board discussion and subsequent dis- cussion by the public may persuade the board to take con- structive action. Openness will enhance public trust in the board. An open self-assessment process, particularly as part of a general prac- tice of openness on issues of public interest, will earn public confidence in the board and trust that issues of interest and concern are being candidly disclosed. This trust may generate understanding and support, as well as carry over to more con- troversial issues such as service reductions, fare increases, or exercise of eminent domain, where public trust is crucial. Limited Disclosure For boards that are permitted to meet in closed session for certain classes of sessions (e.g., those that do not include public business actions, debate, or “deliberations”), a middle road between complete disclosure and complete confiden- tiality may be to receive an advance briefing on the process in closed session, to be briefed on the compiled results in closed session, and then to hold an open session to consider the results and adopt a plan of action regarding the opportu- nities for improvement. Confidentiality A board’s concern about the confidentiality of the assess- ment may arise from a number of causes, including the ones listed below. The media and the public are hungry for sound-bite judgments. The public and the media want to know whether public agencies and officials are doing well or not; however, information on their performance is usually communicated within the tight confines of a news broadcast or a few column- inches of newsprint. A self-assessment is just the sort of information that can be easily (if not always accurately) con- veyed in such a format. There is a risk that a fairly sensitive and balanced assessment will be translated into “Trouble at the Beleaguered Transit Authority Board.” Disclosure of negative assessments may put the board on the defensive. If the members of the community or media do

11 remember negative aspects of the assessment and opportu- nities identified for improvement, they may become single- minded and prevent the board from advancing other initia- tives or dealing with other issues until the negative findings are resolved. Disclosure of assessments could reflect negatively on indi- vidual board members. Although the process addresses only the collective performance of the board, if a board member is associated with a specific issue or characteristic (e.g., union relations or frequent absences), an assessment finding on the topic may be interpreted to reflect on the individual board member. Disclosure of assessments could unbalance the scales on current transit issues. If there are key issues currently at stake (e.g., a fare increase, a rail initiative, or service reduc- tions), the assessment may seem to reflect on the issue in a way that changes board members’ positions or changes pub- lic reaction. For example, a negative finding on financial man- agement may undermine support for a fare increase, a nega- tive finding on strategic planning may weaken a rail initiative, or a negative finding on public involvements might strengthen opponents of service reductions. Guiding Access to Information Although the involvement and reaction of members of the community to the board assessment cannot be predicted any more accurately than their reaction to many other issues of public interest, the board can choose among several steps to guide access to the information. These steps are listed below. Come to an agreement on the degree of confidentiality or disclosure desired. If the board has an opportunity to discuss the self-assessment at the outset, it should discuss the issue of confidentiality. A decision should be made regarding dis- closure of the self-assessment process and disclosure of its results. The entire board should be informed. Consider executive session if permitted by law. If the board has decided to keep the process confidential, it may be possible to discuss the assessment in a closed session. Under specified circumstances, most boards are permitted to meet in private, without public or media representatives. If the law limits the reasons for which a board may convene in execu- tive session, the permissible reasons may include confiden- tiality of personnel issues or personnel performance evalua- tion (and the board itself may be included in the definition of “personnel”). The board’s attorney may also identify other circumstances under which the board would be permitted to discuss the assessment in executive session. If the board desires confidentiality but is not permitted to discuss the assessment in executive session, it may conduct confidential discussions in some other manner that does not violate its open meetings act (e.g., in small groups or during interviews with an outside administrator). Consider holding discussions at a board retreat. Many boards conduct retreats to discuss longer-term or internal mat- ters (such as the performance assessment) in environments that often do not attract public or media attention because specific issues are not debated and often no action is to be taken. Such retreats may have protection under a state’s open meetings act, and they may be well suited to self-assessment discussions. Consider entrusting the process to an outside party that is equipped to legally or practically protect the informa- tion. The Handbook calls for written assessments to be pre- pared by the board members. The assessments are then com- piled to form the basis of the self-assessment. In addition to the discussions themselves, sunshine laws may govern these documents. Like the discussions, however, they may be pro- tected under provisions governing the confidentiality of per- sonnel records. If the board asks someone outside the system to administer the assessment, such as a consultant or external auditor, that person may be able to retain the documents without subjecting them to public disclosure. Restriction of the documents to a trusted external party provides an addi- tional layer of confidentiality and practical protection against inadvertent or subversive disclosure. Consider discussions in a retreat without a written record. In cases in which the board desires confidentiality and believes that the greatest uncertainty arises from the survey docu- ments and other written records of the process (as opposed to discussion in open meetings), the board may wish to conduct the process without a written record. With outside assistance, all of the steps of the process can be conducted orally. The one aspect of the self-assessment process that should be com- mitted to writing is the documentation of goals, which are to be compared to progress at a later point in time. Public Discussion of Self-Assessment Results If a public discussion of the self-assessment results is antic- ipated, it may be desirable to draw up conclusions in advance and present a plan of action to address the opportunities dis- closed by the assessment at the same time that the public dis- cussion is held. Alternatively, a schedule for formulating such a plan of action could be presented. WHO SHOULD ADMINISTER THE ASSESSMENT? The board chair should designate who will administer the self-assessment process for the board in consultation with the

12 board and the chief executive. The self-assessment process may be administered by • A member of the board or staff; • An advisor to the board, such as the board counsel or auditor; or • A consultant or other member of the national transit community willing to be the consultant for the board. The key determinants of who should administer the self- assessment are the desired disclosure, confidentiality, and trust. The individual selected must be committed to the process, including the intended level of disclosure or confidentiality, and should not be susceptible to being compromised by other parties. If confidentiality is a concern, the board should deter- mine whether the candidate’s documents developed for the project would be subject to the laws governing public records. The administrator is not asked in this process to make signifi- cant judgments concerning board effectiveness: the process is one of self-assessment. Training in the process is not neces- sary, although familiarity with the process, with transit boards, and with policy board processes would be helpful. Discus- sions of each type of administrator of the self-assessment process (board/staff member, board advisor, or consultant) are provided below. A member of the board or staff. Agency personnel who could administer the assessment would be the board chair, the chair or member(s) of a standing committee or ad hoc committee of directors, or an individual director. The most trusted, discreet individual(s) serving on the board will vary, as will the reasons for using one person or a small commit- tee of two or three persons to compile the results. In general, if agency personnel administer the process, any nuance in the way the person administers the process may be interpreted as reflecting an interest that conflicts with the overall agency and board interests. Board members may be able to resolve such apparent conflicts, but staff members are not at an orga- nizational level that enables them to defend themselves and to resolve the issues, so asking staff to administer the process is not recommended. Sometimes there is a staff person desig- nated to support the board who could administer the assess- ment evenhandedly. Alternatively, the board could use a staff person if the board has access to these resources for the pur- poses of distributing and collecting the self-assessment instru- ments. Under most circumstances, compilation of the results would be best performed by the board itself or at least under the review of the board or its designated administrator, in order to preserve confidentiality. Advisors to the board within the community. Within the local community there may be trusted persons sufficiently familiar with the board and its membership to handle the administration of the self-assessment process with diligence and discretion. Some boards have such relationships with their board counsel or with an external auditor. A former board member may be suitable as well. If the board has decided to keep the assessment confidential, the person or persons selected should determine whether assessment documents that he or she retains would be exempt from sunshine or Free- dom of Information Act (FOIA) applications. The advantage of a local confidant is that he or she would be sufficiently familiar with the board members and the community issues that the policymaking oversight body faces. There may be alternative resources available to the transit board from other policymaking oversight bodies. For example, banks have long fostered training and self-help for directors. Similar resources from other nonprofit policymaking bodies (such as hospitals) may seem remote to the functions of a transit board, but they do exist and can be sought among networks of other policymaking bodies and directors. For an example, refer to www.boardsource.org. Consultants or members of the national transit commu- nity willing to consult with the board. Within the transit community, there are individuals familiar with the nuances of policymaking and oversight boards. Generally, these per- sons have served as confidants or advisors to transit boards, often on sensitive issues such as the employment of chief executive officers and so forth. Consequently, these individ- uals usually are very astute about confidentiality and the application of public records laws to their situations. More- over, they are often very cognizant of the issues surrounding and related to board and director performance assessments. Transit board consultants and advisors often have diverse interpersonal relationships with a wide range of political leaders who have been either appointed or elected, including the board members. These individuals can provide valu- able insights when addressing the sensitivity of board self- assessments, particularly where there may be substantial diversity of opinion among directors. WHAT LEVEL OF DETAIL OF BOARD SELF-ASSESSMENT SHOULD BE USED? Board assessments may take different forms as well as having different levels of detail. The Handbook provides for three levels of self-assessment that focus on six categories of board performance. The difference between the levels of assessment is in the degree of detail addressed for each of the six categories. Each successive assessment level includes and expands on the performance aspects from the prior level. Level I has 13 performance aspects. Level II adds nine per- formance aspects to those from Level I, for a total of 22. Level III adds 9 performance aspects to those contained in Level II, for a total of 31. The most appropriate level of assessment with regard to detail and depth will vary by board, depending on several fac- tors: (1) the board’s interest, directors’ commitments, and the resources available; (2) the life cycle of the board and the

13 objectives of the self-assessment; (3) trade-offs between more detail in the assessment and time; and (4) the risks of obtain- ing too little or too much detail (particularly for first-time users). These four factors are discussed in more detail below. Board interest, directors’ commitments, and the resources available to devote to the assessment, in terms of per- ceived correlation between inputs (time) and outputs (feedback). The level of detail used for the assessment should be congruent with the board’s collective expectations about what is to be gained from the assessment and balanced by individual directors’ time commitments and the time avail- able to devote to the assessment. Choosing the most appro- priate level of assessment will likely take into account the willingness and ability of the most encumbered directors, or least interested directors, to fully participate in the process. Also germane to the level of assessment are the resources available to the board for administration, including compila- tion and possible board review of the informal or formal results. Where administration resources are limited or poten- tially constrained by other concerns, such as confidentiality, the level of assessment may be limited to Level I or II, and the formality of the process may be limited as well. The life cycle of the board and the objectives of the self- assessment instruments in identifying changes in board policymaking and oversight processes. The level of detail for an assessment will be affected by the life cycle of the board and its membership turnover, as well as by the per- ceived need to use the assessment to help identify possible changes in board processes. Relatively young boards or directors (with regard to tenure) may be more comfortable with a shorter assessment that can be a preamble for a future, more detailed assessment. Older boards (with respect to length of directors’ tenure) may be more inclined to use a more detailed level of assessment, based on their greater familiarity with the workings of the board and the policy- making oversight duties of the board and its constituent directors. Trade-offs between more detail in the assessment and time devoted to the inputs and outputs of the process. The choice of an assessment’s level of detail can be influenced by pragmatic determinants such as the time required and the per- ceived benefits of accumulating more detail on the six per- formance categories. The assessment level should reflect the board’s collective perception of the appropriate time invest- ment and expected level of detail in information returned. If the directors’ self-assessment time inputs are linear with the number of responses, a Level II assessment (22 statements) will require nearly double the time input of a Level I assess- ment (13 statements). A Level III assessment (31 statements) will require nearly two and a half times the time input of Level I. Although there are some fixed time costs for all the assess- ment levels (time required for board discussion and director participation), typically the incremental inputs for succes- sively more detailed assessments will be weighed against the expected outputs, including board review and discussion. There will need to be strong board interest in, and commit- ment to, the assessment (both inputs and outputs) to spend up to twice as much (or more) time on a Level II or Level III assessment (compared with the time required for a Level I assessment). The risks of obtaining too little or too much detail in the assessment, in terms of the board and individual director commitments required to meaningfully execute the process and assess the results. The level of detail selected for the assessment has to be weighed against the likely level of board participation from all directors. Too much detail will probably result in less than full participation, as individ- ual directors decline to devote the time necessary to execute the entire self-assessment instrument. By choosing a level of assessment that is greater than the minimum (Level I), boards are assuming that all directors will fully participate in the higher level of detail; the risk is that they will obtain more detail from fewer fully participating directors. The level of detail should be appropriate to the level of full participation that the board expects from individual directors. There may be some directors who will not fully participate in a meaningful way even at the least detailed level of assessment (Level I). For a comprehensive board assessment, all directors should fully participate. The use of a particular assessment level that directly affects director time and input will require director buy-in; otherwise, the board is explicitly risking less than full participation by all directors.