Request By:
Mr. Kyle T. Hubbard
Nold, Mosley, Clare, Hubbard & Rogers
1614 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
As attorney for the Jefferson County Board of Education you have requested an opinion of the Attorney General interpreting certain provisions of the Open Meetings Law, KRS 61.805 et seq. , and the Open Records Law, KRS 61.870, et seq. In your letter you state the following:
"KRS 160.300 authorizes the Board to investigate certain matters, and to compel witnesses to testify under oath. The Board is considering a request that an investigation be conducted to determine the amount of violence in the schools and whether certain criminal acts have been properly reported pursuant to KRS 199.335(2). In order to receive meaningful testimony from parents, students and school personnal, it is felt that the hearing should not be open to the public, and the news media, and the testimony should be treated in a confidential manner.
* * *
"The Board wants to protect those who testify from public embarrassment, intimidation and retribution, while at the same time it wants to protect the reputations of innocent people from unsubstantiated, and unwarranted, allegations and accusations."
You have asked four questions which we will give our opinion on presently. However, first, we believe we must make some general observations on the statutory law involved. It is often impossible to give useful legal advice on isolated questions and we believe that this is such a case. We realize that the problem confronted by your client is complex and sensitive and we can deal only with legal technicalities.
The statute which you mention that the Board of Education proposes to base its investigation upon, KRS 199.335, is popularly referred to as the "Battered Child Act. " It requires that any physician, nurse, teacher, school personnel, social worker, etc., or any other person who has reasonable cause to believe that a child is being abused or neglected shall report the matter to the Bureau for Social Services of the Department for Human Resources. Upon receipt of a report, the Bureau or its delegated representative shall initiate a prompt investigation and take necessary action for the welfare and safety of the child. Subsection (9) of said statute provides as follows:
"(9) All information obtained by the bureau staff or its delegated representative, as a result of investigation made pursuant to this section shall not be divulged to anyone except: (a) persons suspected of neglect or abuse, provided that in such cases names of informants may be withheld, unless ordered by the court; (b) persons within the bureau with a legitimate interest or responsibility related to the case; (c) other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case; (d) cases where a court orders release of such information."
It is our opinion that a school board has no authority or responsibility under the "Battered Child Act" except that members of the board, school administrators or teachers who have knowledge of a battered child case are legally required to refer the case to the Bureau for Social Services.
You state that the Board of Education is considering conducting an investigation under the authority of KRS 160.300 which reads as follows:
"(1) A board of education may, in any investigation or proceeding before it, concerning a matter that may be a proper subject of inquiry by it, summon witnesses by subpoena, enforce their attendance, and require that they testify under properly administered oath.
"(2) No person so summoned shall refuse to attend or to produce a written statement to be used as legal evidence in the investigation or proceeding, or, if present, refuse to testify concerning any matter that may be a proper subject of inquiry."
With the above cited statutes before us, we address ourselves to the questions you present seriatim:
1. In conducting this type of investigation, would the Board be acting in a quasi-judicial capacity and therefore excluded from the Open Meetings Law pursuant to KRS 61.805(2)?
We do not believe that the Board would be acting in a quasi-judicial function. A board of education is generally an administrative body. The only time that a board acts in a quasi-judicial manner is when it is considering charges against a teacher which may result in the teacher being dismissed under KRS 161.790. A quasi-judicial proceeding is when a board hears evidence as to facts and applies the law to the facts. Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967). We do not believe that a general investigation where charges have not been made and properly served upon a named teacher or administrator constitutes a quasijudicial hearing by the board so as to exempt it from the provisions of the Open Meetings Law. In American Beauty Homes Corp. v. Louisville, Ky., 379 S.W.2d 450 (1964), the Court said:
"It is very doubtful that characterizing the function of an administrative agency as quasi-judicial serves any purpose but to confuse."
The type of hearing described seems to be more in the nature of a grand jury investigation, and of course a grand jury hears evidence in closed sessions and is exempted from the Open Meetings requirement. We do not believe that a school board has the prerogative of acting as a grand jury.
2. Would the exception found in KRS 61.810(6) be applicable in that this will be a hearing which might lead to the dismissal or discipline of an individual employee or student?
We recognize that the proposed investigation could turn up causes for making charges against a teacher under KRS 161.790. Said statute provides that the teacher shall have the right to a hearing on the charges against him and that "the hearing shall be public or private at the discretion of the teacher. "
This provision is the same as the exemption provided in the Open Meetings Law. Both of these statutes, however, contemplate a case where an individual teacher is being considered for disciplinary action. When a student is the subject of the hearing it is also required that a named student be involved rather than a number of unnamed students. We therefore believe that this exemption does not apply to the type of hearing proposed.
(3) If the hearing is conducted by a hearing officer, and less than a quorum of the Board is present, and no final action is taken, would the Open Meetings Law apply?
We referred in detail to the "Battered Child Act" , KRS 199.335, because we believe that this statute places abused children under the jurisdiction of the Bureau for Social Services. It also provides all the safeguards as to privacy, confidential informants and due process. We cannot see how a board of education can take over an investigation of a battered child case.
A board of education can appoint a person to receive voluntary testimony and information regarding the conduct of the schools. It may be acceptable to call such a person a hearing officer. However, we do not believe such a person can act under KRS 160.300 when it comes to issuing subpoenaes requiring the attendance and testimony of persons who are not employees of the school district. We believe that such a person could receive testimony and information in closed meetings and in confidence as long as it was voluntarily given. There is no statutory authority for a board of education to appoint a hearing officer with the power to administer an oath.
What we have said about a hearing officer would also apply to less than a quorum of the board conducting a hearing. It may do so in a closed session, but it will not have the powers granted to the board by KRS 160.300.
(4) If confidential testimony is received by the Board during a closed hearing, would the Open Records Law require that the Transcript be open for public inspection, or, would KRS 61.878(1)(a) exclude this transcript from public inspection since it would contain information of a personal nature and public disclosure would constitute an unwarranted invasion of personal privacy?
We believe that it is not proper for the Attorney General to give an opinion under the Open Records Law about a document which does not as yet exist. Under KRS 61.880 the Attorney General is required to consider an appeal by a person who is denied a public record and give an opinion as to whether the record was properly denied. The Attorney General is authorized to request a copy of the record for his consideration before he gives his opinion. We therefore decline to express an opinion prospectively about a hearing transcript. We would caution, however, that the type of privacy which brings a document under the exception to the Open Records Law is that which is of no valid public concern. A person who violates a law or fails to perform a public duty cannot hide behind a cloak of privacy. A board which receives information of illegal activity is not entitled to keep the information from the public.