The Kentucky Board of Education faced the same challenge in 2015 that it currently faces.

The challenge then, as now, was appointing a new commissioner.

But that action was/is preceded by a national search conducted by a search firm which, itself, must be selected by the board.

In 2015, the board appointed a committee of board members and department employees which "met [whether by telephone or in person] to review and score the applications received for the initial portion of the search firm selection process." It did so without public notice or an opportunity for the public to attend.

A representative of the Bluegrass Institute, Jim Waters, challenged the committee's failure to comply with the open meetings law.

The board defended the committee's actions, asserting that it "was not viewed as a formal committee of the board, as no committee of the board is for a single task and no committee of the board contains members except those who serve on the board."

Additionally, the board argued that it was not empowered to take final action "as the next stage of the process continued in a public meeting of the board."

The Bluegrass Institute appealed the board's denial of it open meetings challenge to the Kentucky Attorney General. The attorney general held that the board's search firm screening committee was a public agency under the definition of that term in the open meetings law for "[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, . . . established, created, and controlled by a 'public agency.'"

The search firm screening committee, the attorney general concluded, violated the open meetings law by failing to comply with the law's fundamental mandate.

https://ag.ky.gov/Priorities/Government-Transparency/orom/2015/15OMD155…

There have, of course, been changes to the open meetings law since 2015. Specifically, KRS 61.810(1)(n) now authorizes closed "meetings of any selection committee, evaluation committee, or other similar group established under KRS Chapter 45A or 56 to select a successful bidder for award of a state contract."

https://apps.legislature.ky.gov/record/18rs/HB302.html#SCS1

In most cases where an exception authorizes a closed session, this means that the public agency must nevertheless comply with statutory notice requirements, admit the public, observe the requirements for conducting a closed session, reconvene at the conclusion of the closed session to take any action it is authorized to take, and adjourn.

Minutes must be taken to reflect that the meeting occurred, a quorum was present, the requirements for conducting a closed session were observed (excluding the closed session discussion itself), any action taken upon resuming open session, and the meeting adjourned.

Neither the attorney general nor the courts have had occasion to interpret the 2018 exception to the open meetings law.

The Kentucky Board of Education appointed a new search firm screening committee at today's special meeting. There was no discussion of how the three member committee would conduct business and no indication that the board, its members, or counsel would repeat its past mistake.

But it might be helpful for the board, and particularly the committee members, to review the 2015 open meetings decision, factoring in the 2018 amendment authorizing closed "meetings of selection committees, evaluation committees, or other similar groups established under KRS Chapter 45A or 56 to select a successful bidder for award of a state contract."

And it might be prudent to remove the "Annotated Outline of Open Records and Open Meetings," last revised in 2006 and therefore outdated and unreliable, from the materials distributed to the board members to enhance their understanding of the open records and meetings laws. It appears as an attachment to the special meeting agenda.

The outline contains any number of significant errors and omissions and cannot be relied upon.

Let's give the members of the Kentucky Board of Education that best/most current/ most accurate materials available to promote full compliance with the open meetings and records laws.