Request By:
Gibson G. Gosser
News Director
First Radio, Inc.
P.O. Box 740
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion on several questions concerning the Kentucky Open Meetings Law, KRS 61.805 to 61.850, as it applies to a local school district when it is carrying out its function under KRS 160.380 of approving the appointment of teachers for the upcoming year. We will answer your questions as presented.
1. "How specific must the board of education be in its motion to meet in closed session for the purpose of discussing personnel? "
Answer: A board is authorized to go into closed session to hold "discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, . . . 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. " [KRS 61.810(6)]. Before going into closed session notice must be given in regular open meeting of the general nature of the business to be discussed in the closed session and a motion must be made and carried by majority vote to go into closed session. [KRS 61.815]. It is sufficient if the notice and motion to go into closed session simply states that the purpose of the session is to discuss personnel matters affecting certain individuals. The names of the individuals do not have to be stated in the notice and motion.
2. "Can a board of education discuss the 'hiring, firing, promotion or discipline' of individual employees without first receiving a recommendation from the superintendent? "
Answer: No.
The context of your letter shows that your questions are concerned with a meeting of the school board to act on the recommendations of the superintendent as to the employment of teachers for the upcoming year. In view of your concern we will point out that the superintendent has the statutory duty to make a recommendation as to the employment and dismissal of teachers under KRS 160.380. He cannot avoid this duty or delegate it to the board. [See OAG 80-205, copy attached] . There should be nothing secret or tentative about the superintendent's recommendations to the board and the board cannot take up personnel matters affecting individuals in an open or clossed session without the superintendent first having made a recommendation. We discussed the relationship between a local school superintendent and the school board as to recommendations on personnel matters in OAG 79-78, copy attached. Also, see KRS 161.740 and 161.750.
In OAG 78-41 we said that a local board of education may create an administrative position without any recommendation of the superintendent and then stated the following:
"Once a position is created and qualifications established, the power and authority to make a recommendation of an individual to the school board for employment in the school system, rests exclusively with the local superintendent. KRS 160.380 and see OAG 77-114, supra. Just as a board of education may not legally delegate to a committee or an individual the authority to perform acts solely within the statutory province of the board, neither may the superintendent delegate, waive or abrogate his personal recomendation function. In the end it is the superintendent alone who decides who will be recommended to the board to fill a position."
Because of the respective duties assigned to the superintendent and the board by statute, we conclude that under most circumstances a board of education cannot go into closed session to discuss the employment of individuals in the school system without first receiving the superintendent's recommendation.
3. "Must the board of education list the names of the individuals and/or the position being considered prior to a closed session. "
Answer: As we stated in reply to question number one it is not necessary to state in open session the names of persons who will be discussed, it must only be stated that the discussion will be of certain named individuals and that the discussion may lead to the appointment, discipline or dismissal of those individuals.
The statutes are silent as to how the superintendent's list of teachers to be employed or not employed for the upcoming year is to be delivered to the board. We observe that the list could be read to the board in open session or copies of the list could be distributed to the board members and any members of the public present in the meeting and if the list is not approved in toto in an open session the board may go into closed session to discuss the individuals named in the list. The important factor here is that the superintendent must make an unequivocal recomendation on personnel matters before the board goes into closed session and the list is not to be composed in conference between the superintendent and the board.