When a young reporter for the Lexington Herald-Leader called me a few days ago to discuss the open meetings issues in a story involving the Pikeville Independent Schools and the purchase of $1 million life insurance policy for its superintendent in 2008, I was pleased to share with him what I knew.
I knew that in August 2008, the attorney general issued a decision declaring that the Spencer County Board of Education violated the open meetings law when it conducted a closed session evaluation of the district superintendent. Not long after, the attorney general reached the same conclusion in an open meetings appeal involving the closed session evaluation of the Jefferson County Public Schools superintendent.
There was nothing original in the analysis. The exception to the open meetings law for "personnel" is expressly limited to discussions which might lead to the appointment, discipline, or dismissal of an individual employee.
The exception says nothing about evaluation â never has and never did.
An evaluation of a current employee cannot lead to appointment. It might lead to renewal of the employee's contract but this is, at best, reappointment. The rationale supporting the exception for discussions that might lead to appointment â to protect reputational interests of unsuccessful applicants â is not implicated when a current employee is reappointed.
Arguably, an evaluation may or may not lead to discipline -- in the form of a pay cut, demotion or reassignment of duties â or even dismissal in the form of termination or the decision not to renew a contract. At that juncture, the open meetings decisions involving Spencer and Jefferson County explained, the board could go into closed session.
I also knew that any final action resulting from a properly conducted closed session must be taken in open public session.
On the facts presented in the case of the $1 million life insurance policy purchased for the superintendent without public board discussion or action, I told the reporter that the Pikeville Independent Schools might be in legal jeopardy.
I shared with him that in a 2012 Supreme Court case, Carter v. Smith, the Court voided a contract for consulting services with the exiting Bourbon County Schools superintendent that resulted from an illegal closed session.
(I also shared with him that in 2010, Kentucky's superintendents convinced lawmakers to amend the law pertaining to their evaluations to authorize closed session discussion of all but the window dressing. This was not relevant since the incident he was investigating occurred in 2008 , but it was an interesting example of a law that directly resulted from an open meetings decision that public officials found objectionable.)
This is the point.
The statement attributed to a former board member in the article below -- suggesting that the open meetings law authorized closed session discussion of superintendent evaluations in 2008 or at any time before â is simply wrong. No doubt, school boards conducted closed session evaluations of the districts' superintendents â why, otherwise, was the attorney general asked to review the issue in two appeals from that period -- but they did so illegally and with no expressed or implied legal authority.
And the open meetings law has never permitted a public agency to take final action in closed session. The law clearly states "No final action may be taken at a closed session."
It saddens me to think -- as the quoted official suggests -- that board members felt less obligation to comply with the law since no member of the public was present. The law itself certainly doesn't recognize the agency's right to relax its standard of compliance under these circumstances.
Knowing nothing about the political alliances in Pikeville or what prompted the investigation, I provided the reporter with solid legal analysis. I suggested the possibility that a court might void the resulting action, but I didn't state that the superintendent must reimburse the Pikeville Independent Schools.
The parties, their attorneys, and the courts can sort that out.
No defense has yet been raised that can justify, rationalize, or explain away the purchase of a $1 million life insurance policy for a superintendent, or any public official, without discussion in open session, a public vote, and a record of that vote in the minutes of the meeting at which the decision was made.
This was true in 2008 and it remains true today.
