Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Jefferson County Board of Education properly relied on KRS 61.810(1)(c), (e), and (f), in conducting a closed session discussion of Superintendent Sheldon Berman's performance evaluation at its June 29, 2009, special meeting. For the reasons that follow, we find that the Board's reliance on the cited exemptions was misplaced. In so holding, we are guided by 08-OMD-165 which, although currently on appeal to the Spencer Circuit Court, represents controlling precedent for this office until an appellate court, in a published opinion, directs otherwise.
In her July 6, 2009, complaint directed to Board Chair Debbie Wesslund, Courier-Journal reporter Nancy Rodriguez challenged "the Board's decision to hold an executive session for the purposes of conducting an evaluation of Superintendent Sheldon Berman." Noting that the Board later voted unanimously, and in open session, to accept the evaluation, Ms. Rodriguez requested that the Board "review this matter, and respond to our complaint within three business days." She reminded the Board that in October 2008, the Attorney General addressed this issue and concluded that such discussions must be conducted in an open session.
By letter dated July 9, 2009, Ms. Wesslund responded to Ms. Rodriguez's complaint advising her that the referenced open meetings decision, 08-OMD-165, is on appeal to the Spencer Circuit Court and not binding on the Jefferson County Board of Education. Nevertheless, Ms. Wesslund maintained, the Board complied with 08-OMD-165 "since there was reason to believe that there would be discussions conducted by the Board that might lead to the discipline of an individual employee. " Additionally, she noted, "the discussion of the superintendent's performance over the past year included discussion of pending lawsuits and strategies involved in ongoing negotiations with the district's labor unions - both topics that are properly addressed in closed session. " Ms. Wesslund emphasized that prior to retiring to closed session, she entertained a motion recognizing that "it is anticipated and expected that performance evaluation of the superintendent will lead to a critical consideration of past performance and specific direction regarding areas of improvement of future performance." The evaluation, Ms. Wesslund concluded, "including commendations and recommendations for improvements agreed to by all seven Board members, was written and the written document was approved by the Board in open session and released to the public."
Shortly thereafter, The Courier-Journal initiated this appeal through its attorney, Jon L. Fleischaker, asserting that:
The Board did not discuss disciplinary action, and Superintendent Berman was not subjected to disciplinary action as a result of the performance evaluation. Nor is there any indication that proposed or pending litigation or collective bargaining negotiations were discussed in closed session.
It was The Courier's position that "[t]he remote and speculative possibility that the discussions might have led to disciplinary action or the discussion of litigation was no greater than any other meeting of a public agency [since t]here is always the possibility . . .," and that because the performance evaluation "was clearly not itself a collective bargaining negotiation, " KRS 61.810(1)(e) was inapplicable.
In correspondence directed to this office following commencement of The Courier's appeal, the Board supplemented its denial of Ms. Rodriguez's complaint, questioning, first, the adequacy of that complaint based on the omission of a proposed remedy. The Board next disputed Ms. Rodriguez's characterization of 08-OMD-165 as legally binding, noting that the decision is on appeal and that the facts giving rise to this appeal are distinguishable from the facts giving rise to 08-OMD-165. Here, the Board argued, the Superintendent's evaluation would "lead to a critical consideration of past performance and specific direction regarding areas of improvement of future performance." Conversely, in 08-OMD-165 the Superintendent's evaluation was characterized by all concerned as positive.
The Board then parsed the language of the written evaluation approved at the conclusion of the closed session and distributed to members of the public, focusing on those portions that "identify[] the Superintendent's challenges" and "direct[] corrective measures." In sum, the Board maintained:
The evaluation document itself refutes entirely The Courier's unfounded assertion that the discussions were only a "remote and speculative possibility" at the time the closed session was ordered. The evidence confirms not only that these protected discussions "might" occur but that they did in fact occur.
In this regard, the Board noted that Webster's Dictionary "disagrees with The Courier's restrictive definition and confirms that discipline can mean 'treatment that corrects or punishes,'" 1 describing the Superintendent's evaluation "as in large part a 'treatment that corrects,'" and suggesting that "[a]ny number of the corrective measures would have been appropriate grounds for some type of punitive action . . . ." Similarly, "[t]he evaluation document specifically addresses the Superintendent's management of ongoing litigation and serious labor/management issues," thus justifying, in the Board's view, the closed session. Respectfully, we disagree.
To begin, we find that Ms. Rodriguez's open meetings complaint did in fact propose a remedy aimed at resolution of the challenged action through a review of same and response thereto. This office has consistently recognized that "the rules of procedure governing the Open Meetings Act should be relaxed to permit the greatest possible access to this forum, and . . . a rule of substantial compliance should generally be applied." 00-OMD-156, p. 3; 04-OMD-164; 07-OMD-264. Bearing in mind that "statutes enacted for the public benefit must be interpreted most favorably to the public" Board of Public Instruction v. Doran, 224 S.2d 693 (Fla. 1969) cited with approval in Courier-Journal and Louisville Times v. University of Louisville Board of Trustees, 569 S.W.2d 374 (Ky. 1979), we find that Ms. Rodriguez' complaint was adequate, and that it triggered the Board's duty to respond.
Further, while we concur with the Board that it is not legally bound by 08-OMD-165, that decision governs this office's analysis of the issue of closed session discussions of superintendents' evaluations. As we have observed on a number of past occasions where an open records decision issued by this office was on appeal:
[Our decision represents controlling precedent] in this forum until such time as that [decision] is repudiated by the Kentucky Court of Appeals or the Kentucky Supreme Court in a published opinion. To hold otherwise would result in conflicting open records decisions issuing from this office the outcome of which would be dependent upon the circuit in which a similar dispute arose or might arise, and, within the same circuit, where co-equal divisions of the court reach conflicting conclusions. To hold thus promotes certainty in the application of established legal principle . . . . [A]ny . . . public agency . . . is entitled to appeal the Attorney General's open records decision in the appropriate circuit court per KRS 61.880(5)(a).
06-ORD-230, p. 7, 8; 07-ORD-132, p. 7 ("Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected in the [referenced] line of decisions . . ."). While, as Ms. Wesslund suggested in her response to Ms. Rodriguez' complaint, school districts across the state may continue to discuss their superintendents' evaluations in closed session, 08-OMD-165 notwithstanding, they can expect the same analysis in the event of an appeal to this forum until our position is judicially repudiated.
Ultimately, we disagree with the Board that the facts of the Board's June 29, 2009, closed session discussion of the Superintendent's performance evaluation distinguish it from 08-OMD-165. We address first the Board's invocation of KRS 61.810(1)(c) and (e) to support the closed session. These exceptions permit an agency to conduct a closed session aimed at:
(c) Discussions of proposed or pending litigation against or on behalf of the public agency; [and]
(e) Collective bargaining negotiations between public employers and their employees or their representatives[.]
In Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997), the Kentucky Supreme Court declared that in enacting KRS 61.810(1)(c) the legislature "clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy, or tactics. " The Court recognized that "anything that would include the attorney-client relationship would also fall within the exception," but expressly rejected the notion that the exception can "be construed to apply 'any time the public agency has its attorney present,'" or "expanded to include general discussions of 'everything tangential to the topic.'" Id. at 924, citing Jefferson County Board of Education v. The Courier-Journal, 551 S.W.2d 25 (Ky. App. 1977).
The record in the appeal before us indicates that Board did not conduct a discussion of preparation, strategy, or tactics relative to proposed or pending litigation, but that it instead "address[ed] the Superintendent's management of ongoing litigation," presumably Meredith v. Jefferson County Board of Education, although the case is not identified, and "his continued work toward the district's goal of diversity in the district's student assignment plan." These matters are, at best, tangential to the topic. In the absence of any proof that "matters commonly inherent to litigation" and falling within "the attorney-client relationship" were discussed, we find that the Board's reliance on KRS 61.810(1)(c) was misplaced.
Similarly, we note that in Jefferson County Board of Education v. Courier-Journal, above, the Kentucky Court of Appeals narrowly construed KRS 61.810(1)(e), then codified as KRS 61.810(5), to "allow[] confidential meetings for collective bargaining negotiations between public employers and their employees [but not to] embrace everything tangential to the topic." Id. at 28. The court reasoned:
Collective bargaining negotiations means the settling of disputes by negotiation between employer and the representatives of the employees. United Construction Workers v. Haislip Baking Co. 223 F.2d 872, 877 (4th Cir. 1955). We do not believe that the legislature intended "reports" or status briefings on labor negotiations to be held in privacy.
Id. at 28, 29. Although the court approved closed session discussions in which a public agency "formulat[es] its demands or position preparatory to collective bargaining negotiations, " this was not the substance of the June 29 closed session. The Board instead focused on the Superintendent's performance in representing the Board in collective bargaining matters. We find that such a discussion is too far removed from actual negotiations, or specific preparation related thereto, to justify invocation of KRS 61.810(1)(e)
Turning at last to the Board's invocation of KRS 61.810(1)(f), we acknowledge that, given the tenor of the Superintendent's performance evaluation, the question presented to us here is slightly different than the question presented to us in 08-OMD-165. We are not prepared, however, to accept the Board's position that a call for corrective measures is tantamount to discipline as that term is ordinarily understood. 2 By its express terms, KRS 61.810(1)(f) authorizes agencies to conduct in closed session:
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.
In this context, discipline is not ordinarily understood to mean "treatment that corrects or punishes," notwithstanding the definition to this effect that appears in Webster's Dictionary, but is instead understood to mean diminution in rank, salary, or benefits, oral or written reprimand, suspension, and/or the imposition of other forms of punishment short of dismissal. The suggested interpretation opens the floodgates to tenuous claims based on an agency's desire "to shield [itself] from unwanted or unpleasant public input, interference, or scrutiny," Ratliff at 924, while correctively directing public employees in the conduct of their official duties. Simply stated, "encouraging" the Superintendent "to develop a relationship of mutual respect with staff," to "keep[] the lines of communications open and seek[] feedback from union representatives," and to "continue to seek feedback and welcome involvement from parents and community" cannot be equated with disciplining the Superintendent. The reputational interests implicated in the course of such discussions are altogether different.
We therefore find that the analysis contained in 08-OMD-165 governs this appeal. Copies of that decision, and the underlying OAG letter that supports it, are attached hereto and incorporated by reference. In particular, the discussion at pages 8 through 10 is dispositive of the issue on appeal. Here, as in 08-OMD-165, we find that although the Board was no doubt motivated by a good faith belief that it was operating within the bounds of KRS 61810(1)(f), as construed in 08-OMD-165, "the school board, at the outset of its review proceedings, [could not] . . . invoke the provisions of KRS 61.810[(1)(f)] to remove from the public domain its entire review of the school superintendent's performance relative to the school system generally." 08-OMD-165, p. 9, citing March 5, 1990, OAG letter. The Jefferson County Board of Education's decision to do so constituted a violation of the Open Meetings Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Webster's New World Dictionary 391 (3d College Ed. 1988).
2 See Lynch v. Commonwealth, 902 S.W.2d 813, 814 (Ky. 1995) relative to the canons of statutory construction requiring words employed in a statute to be given their ordinary meaning.