LORAIN — Lorain Schools Superintendent Cheryl Atkinson’s contract contains a requirement that her completed performance review be placed in a sealed envelope marked “confidential” before being inserted into her personnel file.

The review isn’t there.

The contract provision that makes the review confidential is likely illegal, said Tim Smith, a Kent State University journalism professor and an attorney specializing in public records law.

“You cannot contract to make a public record private,” Smith said.

The Ohio Public Records Act also specifically bars withholding performance evaluations and disciplinary records for public officials, according to the Ohio Attorney General’s 2009 Sunshine Law handbook.

School board attorney Anthony Giardini said that while he hasn’t reviewed the law, he believes Atkinson’s performance review, completed last year, is probably a public record.

Atkinson said it was her understanding that her review would be kept confidential and wasn’t a public record, but that she would make it available for The Chronicle-Telegram to review Monday.

“I don’t have anything to hide,” she said. “I had an excellent review.”

The school board is currently negotiating a five-year extension to Atkinson’s current three-year contract, which expires in July 2010.

Tony Dimacchia, vice president of the school board, said the contract was discussed in an executive session during a special board meeting Friday, but a decision won’t be made until at least June 17.

Although board members have refused to discuss the specifics, they did say that Atkinson’s total compensation package could increase from approximately $213,000 to more than $250,000 annually under the new contract.

Although Atkinson’s current base pay is $175,000, she receives numerous other benefits, including the district paying her share of her retirement.

Another change that will be made to Atkinson’s contract is the removal of a provision that requires Atkinson to live within the school district.

It’s a provision that Atkinson, who resides in the portion of Lorain that falls within the boundaries of the Amherst Schools, has been ignoring for more than a year with the approval of the Lorain school board.

Atkinson rents her Rosecliff Drive home from Giardini, the school board attorney who is handling the legal review of her new contract. Giardini said there’s nothing improper about him serving as Atkinson’s landlord and reviewing her new contract.

Ohio Ethics Commission Staff Attorney John Rawski said that in general, the commission would only consider a possible conflict if Giardini was an actual school board employee.

Although Giardini is paid an annual retainer of $72,000 to serve as the board’s attorney, he isn’t actually a school board employee but rather an independent contractor.

“We’ve generally said that a person who’s an independent contractor rather than an actual public employee or an elected official doesn’t fall under the Ethics Commission,” he said.

Dimacchia said that the board doesn’t consider Giardini to have a conflict of interest because the decision on whether to approve a new contract for the superintendent will be made by the board, not its attorney.

Jim Smith, another school board member, said while he doesn’t believe Giardini would do anything improper, it’s the appearance of a conflict of interest that concerns him.

He said the board is currently working on Atkinson’s second annual review, although it hasn’t been completed yet.

Smith and Dimacchia both said Atkinson received a positive review last year.

“I don’t know why she wouldn’t want it in (her file), because there were no red flags,” Smith said.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

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