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Description of House Bill 288

Thanks to Valarie Honeycutt Spears and Beth Musgrave for calling attention to a bill with public records access implications that escaped our notice. 

https://www.kentucky.com/news/local/education/article272513257.html

Reporting on the Kentucky Education Professional Standards Board's announcement that Thomas Steuart’s revoked license to teach will be restored

if a series of conditions are met, the Herald Leader reporters noted:

"House Bill 288, a bill filed Rep. James Tipton, R-Taylorsville, would make it illegal for school districts to have nondisclosure agreements between a teacher and a school district about conduct involving minors. The bill would also make applicants for jobs disclose if they have been the subject of allegations or investigations involving misconduct. The bill has not been assigned to a committee."

https://apps.legislature.ky.gov/record/23rs/hb288.html

Finally something we can agree with Rep. Tipton about.

Our only complaint about HB 288 is that it may be under-inclusive. Ideally, the same prohibitions and obligations would apply in the case of all public employees disciplined for misconduct — particularly those public employees in whom we repose the greatest trust: teachers (elementary, secondary, •and• post-secondary) and law enforcement officers. 

https://www.kentucky.com/news/local/education/article263570683.html

https://www.chronicle.com/article/pass-the-harasser-is-higher-eds-worst…

https://www.chronicle.com/article/2-universities-tried-to-stop-passing-…

https://www.wdrb.com/wdrb-investigates/he-was-arrested-for-having-sex-w…

https://www.king5.com/article/news/investigations/tukwila-former-office…

https://casetext.com/case/univ-of-ky-v-kernel-press-inc

The Chronicle of Higher Education describes a common factual scenario:

“A professor or administrator commits sexual harassment, resigns quietly, and gets a new job at a different institution. This phenomenon, known as ‘pass the harasser,’ is common in academe, and it’s come under increasing scrutiny during the #MeToo movement.

“In some cases, the college on the receiving end is aware of the previous misconduct and makes the hire anyway, wooed by the person’s credentials. In others, the college doesn’t know about the harassment because institutions don’t share that information. Often, colleges sign confidential settlement agreements with employees who’ve committed harassment, moving them on without anyone outside of that institution knowing what they’ve done.”

Both non-disclosure agreements and confidentiality agreements prevent private information from becoming public, but in the case of a public agency and a public employee’s separation from employment for misconduct, there is nothing private about the information. Kentucky’s past attorneys general recognized this fact in various factual contexts and the courts, in the context of settlement agreements in litigation, declared:

“In balancing the sacrosanct right of an individual to privacy against legitimate public concerns and the right of the public to inquire into the workings of government, we find that a settlement of litigation . . . is a matter of legitimate public concern which the public is entitled to scrutinize. A confidentiality clause in such an agreement is not entitled to protection.”

https://caselaw.findlaw.com/ky-supreme-court/1020726.html

A Colorado bill that restricts governments’ use of nondisclosure agreements to silence public employees has earned bipartisan support in a Senate committee. (leg.colorado.gov/bills/sb23-053). “We shouldn’t be muzzling employees or officials,” says it’s sponsor.

https://m.facebook.com/story.php?story_fbid=579933520831752&id=10006445…

A bill aimed at stemming the phenomenon in Kentucky — obligating disclosure of past misconduct, extensive background and reference checks, retention and maintenance of disciplinary records — is overdue. If it is assigned to committee; if it is given thoughtful consideration; if it can survive external pressures; and if it is enacted and enforced, we may emerge from the 2023 Regular Session with one win for open government.

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