Request By:
Mr. John P. Kirkham
Attorney at Law
Post Office Box 585
1404 South Virginia Street
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
As attorney for the Christian County Board of Education, you have requested an opinion of the Attorney General as to whether the Board may legally go into closed session for the purpose of interviewing candidates it is considering to replace a board member who has resigned.
This question must be considered under the provisions of the Kentucky Open Meetings Law, KRS 61.805-61.850. This statute requires generally that the public's business be done in public rather than in secret and that meetings of a public agency must be open except in certain named cases. One of the exceptions to the Open Meetings requirement is KRS 61.810(6) which reads as follows:
"Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student, without restricting that employee's, member's or student's right to a public hearing if requested, provided that this exception is designed to protect the reputation of individual persons and shall not be interpreted to permit discussion of general personnel matters in secret. "
Your question has to do with procedures leading to the election by the remaining members of the Board of a person to fill the vacancy of a board member who has resigned. It is therefore clear that this subject matter is a proper exception to the Open Meetings requirement. It should be noted, however, that the final action of the Board in electing a new board member should take place in an open meeting. KRS 61-815(3).
In OAG 76-4, we discussed the question of electing a member to fill a vacancy on a school board and said:
"It is therefore our opinion that the discussion and action to elect a new board member should be in an open meeting. "
We did not, however, consider in that opinion the question of interviewing prospective board members as you have stated that your board wants to do. Your letter indicates that the Board would like to interview candidates, discuss their comparative qualifications and make a decision on the one to be elected, all in a closed meeting. The Board would then take formal action in an open meeting. We think that such procedure is to the letter of the Open Meetings Law, if not to the spirit of the law. To conform to the spirit of the Open Meetings Law, we think that some discussion of the reasons for electing a particular person shoud take place in an open meeting and that closed sessions should be held only to the extent that they are necessary for the protection of the reputations of the individuals involved.
In OAG 77-392, we said that candidates for superintendent of schools could be interviewed in closed session because of the desire of the candidates to keep their candidacy confidential in order to avoid any disruption in their relationship with their current employer. For the same reason we think that prospective board members may be interviewed in closed session on matters involving personal privacy. A candidate's position on matters of public policy is a different matter, however, and there should be no secret understandings on such policy.
You also ask a question on another matter, namely, whether final action on a student disciplinary matter may be taken in closed session.
This question involves KRS 61.815 which sets forth the procedure for a public agency going into a closed session. This statute provides that the procedure must be followed when going into a closed session for the purpose of discussing or having a hearing on personnel matters with the exception of matters relating to students. When the purpose of the meeting is a discussion or hearing which might lead to the disciplining of a student, it is not necessary to follow the procedures set forth in KRS 61.815. In other words, it is not necessary to give notice in a regular meeting, or to make a motion in open session to conduct a closed session, or to take final action in an open session. The whole disciplinary proceeding may be conducted in closed session provided the requirements of due process are observed. The student and his parents must be notified and afforded the opportunity to be present and be heard in the hearing.