Request By:
Mr. Gary Bale
Attorney
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the Kentucky Open Meetings Law, KRS 61.805-61.850, as it applies to the State Board of Education in deliberating and rendering decisions on expulsions of students from the Kentucky School for the Blind, the Kentucky School for the Deaf and postsecondary students from vocational schools. You state the problem as follows:
"Under applicable state law and regulations, final decisions on such matters must be made by the State Board itself, although a hearing officer or hearing committee method is utilized for the actual taking of evidence and initial recommendation. The State Board, however, meets in regular session only every two months, and such, obviously, makes it difficult at times to schedule expulsion hearings and decisions thereon in an expeditious manner and still fulfill all legal requirements.
"The State Board's question, in light of such, is whether it can conduct a special meeting by conference telephone call to deliberate and vote on initial recommendations on expulsion matters, assuming the requirements of KRS 61.825 as to holding a special meeting are met."
If a meeting is required to be open by the Open Meetings Law, it cannot be held by telephone conference and any action taken by telephone conference call may be declared void by a court.
Fiscal Court of Jefferson County v. Courier Journal, Ky., 554 S.W.2d 72 (1977); OAG 80-426. That facet of the law, however, does not provide the answer to the question you present because meetings dealing with disciplining students are exempt from the requirement of being open to the public by KRS 61.810(6). Also, such meetings are exempted from the requirements pertaining to going into a closed session by KRS 61.815. The State Board of Education may, therefore, meet in closed session to act on a recommendation of a hearing officer on the expulsion of a student without any preliminary action in an open meeting and may take final action on the matter in a closed session.
We must next consider how the statute governing requirements for holding special meetings, KRS 61.825, applies when a disciplinary matter is taken up in a special meeting rather than at one of the regular meetings of the Board. The statute requires the giving of notice, delivered personally or by mail at least 24 hours prior to the time of the meeting, to the members of the governing body of the public agency and to each news service entity which has on file with the public agency a written request to be notified of special meetings. The provisions of KRS 61.825 should be complied with even though the special meeting will deal only with subjects which are exempt from mandatory open meetings by KRS 61.810; but, as a practical matter, we suggest that the notice of the special meeting could inform the news media that the entire meeting will be in closed session. The public is entitled to know that the meeting is being held and was held and is entitled to be present outside the closed session to see if any final action is taken after the closed session in a public meeting or if the agency has any actions to announce as the result of the closed session.
Against the background of the above discussion of KRS 61.810 - 61.825 we face the question of whether the Open Meetings Law permits the holding of a meeting by telephone conference call by the State Board of Education on the subject of the expulsion of a student of one of the schools of which the State Board has the direct oversight in disciplinary matters. We have already said that such meetings may be held in closed session without any preliminary formality when the board meets in person. The public is not entitled to be in the meeting but is entitled to know that the meeting is being held. It logically follows from this conclusion that the Board may meet by conference telephone without violating the Open Meetings Law or otherwise depriving the public of any right concerning the meeting.
We believe that the news media should be notified, at least 24 hours in advance, that the meeting by conference telephone is to be held on disciplinary matters and will be closed to the public.
This opinion is confined to the facts of the particular question presented and it is not meant to say that in any other circumstances a public agency may hold a disciplinary hearing by conference telephone. The peculiar circumstances we have noted and considered in this opinion are (1) the State Board of Education meets regularly only every two months and the membership of the Board may reside anywhere within the boundaries of the Commonwealth; (2) by regulation there has been established an appeal procedure utilizing hearing officers to review disciplinary cases where expulsion may be ordered, 705 KAR 1:020; (3) the hearing officer shall hear proof, oral arguments and/or may request written briefs and shall make findings of fact, conclusions of law and recommendations to the State Board, and the State Board is required to make a final determination of the case within 30 days; Id. (4) before the appeal procedure is begun the student has been provided a due process hearing at the local level, 705 KAR 5:080; (5) The role of the State Board of Education on expulsion appeals is to review the record made up under the presiding of the hearing officer and to approve or disapprove the hearing officer's recommendation. 705 KAR 1:020 § 10. We believe that under these special circumstances it is permissible for the State Board of Education to meet by conference telephone to decide the final disposition of the appeal.