Request By:
Ms. Betsy Irby
2925 W. Lov. Flo. Sta. Rd.
Paducah, Kentucky 42001
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
You have requested that this Office render an opinion on a question arising under the Open Meetings Act. Specifically, you ask whether the McCracken County Board of Education violated the Open Meetings Act when it went into executive session to discuss a letter from the U.S. Department of Education, Office for Civil Rights, concerning a complaint of alleged discrimination involving a handicapped student in the McCracken County School District. In your request letter, you comment:
The Superintendent acknowledged that the identity of the complainant was not known but he speculated it involved the youth who was recently the center of a grand jury investigation. No names were mentioned in the letter nor were any names mentioned in executive session.
As a board member, I questioned the rationale for discussing the matter in closed session as it was obviously NOT an individual student matter. I felt the matter should be discussed in open session. The Board's attorney argued that the Office of Civil Rights' investigation could lead into litigation in the future and we were justified keeping this information in closed session.
You attach a copy of the letter from the U.S. Department of Education, as well as a number of newspaper clippings describing the Board's meeting.
We begin with the proposition which has become axiomatic in this area of law, and which is found in the Preamble to the Open Meetings Act, "[T]he formation of public policy is public business and may not be conducted in secret. " Thus, at KRS 61.810, the General Assembly declares:
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by such agency, are declared to be public meetings, open to the public at all times . . . .
Recognizing that there are extraordinary circumstances, which may warrant a public agency conducting its business in closed session, the legislature has carved out a number of exceptions to this general rule. Among those meetings excepted are meetings at which proposed or pending litigation against or on behalf of the public agency will be discussed, KRS 61.810(3), and meetings or hearings at which the appointment, discipline, or dismissal of an individual employee, member, or student will be discussed. KRS 61.810(6).
It is the Board's position that because the letter it received from the Department of Education suggests that "enforcement measures" may be initiated, it may invoke KRS 61.810(3). The relevant portion of that letter provides:
Pursuant to our responsibility under the regulation implementing Section 504 [of the Rehabilitation Act of 1973, 29 U.S.C. Section 794], an investigation of the allegations [contained in the complaint] began on March 12, 1991. A determination of the merits of the complaint will be made on or before July 25, 1991. We will notify you and the complainant of the results of the investigation in a Letter of Findings (LOF). If we find that a violation has occurred, OCR will attempt to resolve the matter before issuing the LOF. If we are unable to reach an agreement, we will then issue the LOF. We will have 60 days after the issuance of the LOF to negotiate a remedy. If we are unable to agree upon an appropriate remedy within 195 days from March 12, 1991, OCR is required by complaint investigation procedures to initiate enforcement measures within the following 30 days.
You apparently dismiss the Board's argument with respect to this exception, and, anticipating a second line of defense, assert that since the discussion did not center on an "individual student matter," the Board cannot invoke KRS 61.810(6). We will address the applicability of each of these exceptions.
KRS 61.810(3) creates an exception to the Open Meetings Law for, "Discussions of proposed or pending litigation against or on behalf of the public agency. " This Office has previously opined that this exception is intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to the litigation. OAG 78-227. Further, we have indicated that the terms "proposed or pending" should not be broadly construed to authorize a closed session when the possibility of litigation is remote. In OAG 84-240 we addressed this concern, noting that where there had been "direct suggestions of litigation" conditioned on the occurrence or nonoccurrence of a specific event, the possibility of litigation was sufficiently great to warrant the agency's invocation of KRS 61.810(3).
We do not believe that the Department of Education's notification to the Board that it has received a complaint and will conduct an investigation constitutes "proposed or pending litigation. " Clearly, the Board's discussion did not center on a pending legal action. Nor do we believe that the Department of Education's letter suggests a plan or intent to commence legal action. Only if their investigation yields evidence of a violation, and the parties are unable to negotiate an appropriate remedy, will the Department initiate enforcement action. It therefore cannot be persuasively argued that it was necessary, at this juncture, for the Board to go into closed session to discuss litigation strategy. Mere speculation about the possibility of litigation at some point in the future does not trigger the exception codified at KRS 61.810(3). The public is entitled to know that a complaint has been filed against the school district, and the nature of that complaint.
Although the Board did not invoke KRS 61.810(6), we agree with you that this exception could not have been properly raised. That provision authorizes a public agency to conduct a closed session when the topic to be discussed:
[M]ight lead to the appointment, discipline or dismissal of an individual employe, member or student without restricting that employe'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.
This Office has consistently held that discussion in closed session must be specifically limited to matters pertaining to the appointment, discipline, or dismissal of a specific individual. OAG 77-577; OAG 81-136; OAG 82-300; OAG 83-415; OAG 83-455; OAG 83-489. AS we noted in OAG 83-415, at p. 2:
The purpose of a closed session for these three matters is to protect the reputation of the individual involved. It is our opinion that the legislature specifically intended to close discussions only of these three subjects due to the potential for reputational damage. Closed discussions of other matters . . . are expressly precluded by KRS 61.810(6) which prohibits the 'discussion of general personnel matters in secret. '
Since none of these topics were discussed at the Board's meeting, and no individual was specifically identified, KRS 61.810(6) has no application.
We therefore conclude that the McCracken County Board of Education improperly conducted a closed session to discuss the letter it received from the U.S. Department of Education. More than a remote possibility of litigation is necessary to bring a meeting within the exception to the Open Meetings Law codified at KRS 61.810(3).