Request By:
Mr. Billy H. Stout
Superintendent
Trimble County Schools
Bedford, Kentucky 40006
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
In your letter to Assistant Attorney Robert L. Chenoweth you request an opinion of this office on questions pertaining to Kentucky's Open Meetings Law, KRS 61.805 - 61.850. We will answer your question seriatim.
1. Can the board of education invite members of the public into executive session for the purpose of addressing the board?
You state that at a regular meeting of the board of education a reporter who is a resident of your county requested to address the board in executive session which had been called for the purpose of discussing applications for teaching positions. Discussions of personnel matters involving named individuals may be held in closed session under KRS 61.810(6). Any person who the board believes can contribute information or advice on the subject matter under discussion may be invited into the executive session but should remain only so long as is necessary to make his contribution to the discussion. A person who is the subject of the discussion may, of course, be invited into the closed session.
2. Can a reporter, who is a citizen of the community, be invited into executive session to address the board without inviting all other reporters?
Under the Open Meetings Law a reporter has no more rights or disabilities than any other citizen. Just because the person invited into a closed session is a reporter would not mean that all other reporters would have to be allowed in the session.
In addition to the Open Meetings Law there are certain provisions in the Constitution of Kentucky and case law which have a bearing on your questions. When an agency such as a school board goes into closed session, according to proper procedure, it may allow only persons in the closed session as long as there is a reason for their being there. A public agency may not act in an arbitrary manner in conducting a closed session and may not select some persons to attend and some to be kept out without having a reason for its actions.
Section 1 of the Bill of Rights of Kentucky provides that all men are free and equal. Section 2 provides that absolute and arbitrary power over the life, liberty and property of free men exists nowhere in a Republic, not even in the largest majority. This section enjoins arbitrary action by any public agency or public official.
Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). An action is "arbitrary" when it is not based on reason. A public agency should not invite certain people to be merely spectators in a closed session and at the same time bar certain other people from being spectators. For example, an agency may not bar all newspaper reporters while at the same time it allows other individuals to observe the meeting.
Johnson v. Simpson, Ky., 433 S.W.2d 644 (1968).
In order to avoid arbitrariness and to conform to reasonable standards, we believe that a person who is brought into a closed session for a purpose should remain in the session only as long as the purpose is being served. If a person is a witness on a certain matter, he should leave the closed session after he has testified.
In inviting non-members into a closed session, we believe that the agency has the duty to explain why such persons are invited into the session.