Request By:
H. B. Elkins
Editor
Citizen Voice & Times
108 Court Street
Irvine, Kentucky 40336
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter raises questions concerning the interpretation and application of the Kentucky Open Meetings Act (KRS 61.805 to KRS 61.850).
On March 11, 1991, the Estill County Board of Education met in a special session to interview two candidates for the position of school superintendent. When the Board returned to open session it voted by a 3 to 2 margin to employ Roger Kirby. No salary or length of contract were discussed or established.
On March 14, 1991, the Board met and during the meeting went into closed session, apparently with Mr. Kirby, to discuss the length of the contract and the annual salary. At that point you objected on the grounds that such a closed session was not in conformity with KRS 61.810(6) as the superintendent had already been hired. The Board's attorney maintained that the superintendent had not yet been hired as no salary or length of contract had been agreed upon. The Board's attorney stated that Mr. Kirby was hired as superintendent on March 14, 1991, after the salary and the terms of the contract were agreed upon by both parties.
Your first question to this office is as follows:
Was the March 14 closed session of the Estill County Board of Education, during which the length of contract and annual salary for the newly-hired superintendent of school was discussed, held in violation of Chapter 61 of the Kentucky Revised Statutes?
While you apparently recognize that KRS 61.810(6) would permit the Board to interview applicants for the position of school superintendent during closed sessions of its meetings, your question assumes that the Board had hired Mr. Kirby at its meeting of March 11, 1991. The evidence you submitted, a copy of the Board's minutes from the meeting of March 11, indicates that the Board desired to employ Mr. Kirby. There is no evidence as to when or if Mr. Kirby accepted the Board's offer of employment. Since you admit that the Board did not, at its meeting of March 11, 1991, establish a salary or the length of the contract relative to Mr. Kirby's proposed role as superintendent, it would seem doubtful that the Board's offer was accepted at that time under those conditions.
At this point some basic principles of contract law need to be considered. In 17 C.J.S. Contracts § 34 the following appears:
Every agreement, whether written or oral, is the result of, and springs from an offer and the acceptance thereof. The offer and acceptance must have the characteristics of a bargain and must be conventional counterparts, and knowledge of either party that the other party does not intend what his words or acts express prevents such words or acts from operating as an offer or acceptance.
Thus, every contract involves an offer and an acceptance. In 17 C.J.S. Contracts § 35 the term "offer" is defined as follows:
An offer is the signification by one person to another of his willingness to enter into a contract with him on the terms specified in the offer, a statement by the offerer of what he will give in return for the promise or act of the offeree.
In connection with the concept of an acceptance your attention is directed to 17 C.J.S. Contracts § 39 where the following appears:
[B]efore an offer can become a binding promise and result in a contract it must be accepted either by word or act, since without this there cannot be agreement, notwithstanding the unaccepted offer purports to be a contract; nor is a promise binding on its maker unless the promisee has assented to it, or unless the offer is supported by an independent consideration. An acceptance concludes the making of a contract; nothing further is required.
There is no evidence that the Board's offer of employment was accepted on March 11, 1991. It seems doubtful that the offer would have been accepted then since it did not include provisions as to salary and the length of employment. It seems more likely that the offer was accepted on or after March 14, 1991, which was the date the Board and Mr. Kirby discussed the matters of salary and length of the contract.
Thus in response to your first question, if the offer was not accepted prior to the meeting on March 14, 1991, then there was no contract in effect at that time. KRS 61.810(6) permits a public agency, such as a a school board, to hold in a closed session discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee. See OAG 77-392, OAG 77-674 and OAG 83-455, copies of which are enclosed. In absence of a contract between the parties, discussions between the school board and Mr. Kirby, involving his specific salary and the length of his contract, were factors involved in his possible appointment as the superintendent of the school system and subject to the exceptions to open meetings.
Of course, once a contract has been agreed upon between the parties, the terms of that contract, including the salary arrangement, are subject to public inspection under the Open Records Act. See OAG 86-55, copy enclosed. In addition, discussions of salary increases for public employees cannot be held during closed sessions of public meetings. See OAG 83-377, copy enclosed. Also, discussions involving the qualifications required of the candidates, generally, for a public position and the salary range to be offered must be held in open sessions of public meetings.
Your second question, dealing with the contentions of the school board's attorney relative to the implications of the Board's meeting of March 11, 1991, has been discussed above to the extent possible based upon the evidence made available to this office.
Your third question, as to the voidability of actions taken at the Board's meeting of March 14, 1991, is moot based upon the conclusions reached in this letter. You might, however, wish to examine KRS 61.830 pertaining to "Action voidable for noncompliance" and OAG 78-175, copy enclosed.