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 Scott County Board of Education violated the Open Meetings Act by conducting one or more improper closed sessions between November 1, 2008, and May 22, 2009, to engage in "secret negotiations with the [U.S. Department of Education's] Office of Civil Rights and . . . approve [] a secret settlement with the federal government . . . [, or] to give its attorney the power to negotiate and enter a final, binding agreement with the federal government without additional board approval . . . ." We find that the record on appeal does not support the claimed open meetings violation.
In a complaint dated September 28, 2009, Frank Lockwood reminded Board Chairwoman Rebecca Sams that sometime after November 21, 2008, the Board entered into negotiations relating to the terms of a resolution agreement with the Office of Civil Rights, and that on May 22, 2009, the Board entered into a binding resolution agreement with that office. Mr. Lockwood noted that the minutes of the Board's meetings from November 1, 2008, to May 22, 2009, demonstrate that the Board "never discussed the agreement and never voted to approve it in open session." He therefore complained that the Board violated the Open Meetings Act by conducting secret negotiations with the Office of Civil Rights, or by secretly authorizing its attorney to do so, and by executing the resolution agreement in a nonpublic forum. As a means of remedying the alleged violations, Mr. Lockwood proposed, inter alia, that the Board "approve or reject the agreement in a manner that complies with Kentucky law . . . ."
On October 1, 2009, Board attorney Robert L. Chenoweth denied the allegations of Mr. Lockwood's complaint. Mr. Chenoweth conceded that he met with the Board in closed session at its January 13, 2009, meeting "to discuss [the] status of [the] OCR complaint defense," and that he emailed OCR counsel on May 21, 2009, to advise that he was "authorized to sign [the agreement] as the designee of the Superintendent . . . ." He further conceded that on May 22, 2009, he received an email from counsel for the OCR "acknowledging receipt of the executed agreement and advising [that] the agreement 'successfully resolves the [OCR] complaint.'" Continuing, Mr. Chenoweth observed:
A local school district superintendent is, by statute, the executive agent of the board of education. See KRS 160.370. Consequently, as is quite common and standard practice, the contact by this law office was with [former] Superintendent Putty concerning the subject OCR complaint. Once there was receipt of a draft of the Agreement, I met in closed session with the Board of Education. The entitlement for meeting with the Board of Education in closed session to discuss the OCR complaint and another matter where litigation had been threatened (and has now been filed) is governed by KRS 61.810(1)(c). See, also, e.g., 03-OMD-234; 93-OMD-119[;] Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997).
In regard to the present matter, the discussion of the OCR complaint and the possible resolution of that matter through a settlement agreement was fully appropriate under the Open Meetings Act. . . . Moreover, that in carrying out the further defense of the Board of Education concerning the OCR complaint was to be accomplished by and in conjunction with the superintendent in no way violated the Open Meetings Act. The Resolution Agreement was signed by the undersigned after receiving full authorization to do so from [former] Superintendent Putty. An action item at a meeting of the Board of Education to approve the Resolution Agreement was not required as a matter of law.
Dissatisfied with the Board's response, Mr. Lockwood initiated this open meetings appeal.
In his letter of appeal, Mr. Lockwood stated that a review of the Board's meeting minutes discloses that the Board conducted closed session discussions of proposed or pending litigation on three or four occasions in 2009. 1 Relying on OAG 91-141, he disputed the Board's argument that the closed session discussion of the "OCR complaint" was authorized by KRS 61.810(1)(c). Anticipating that the Board would attempt to distinguish OAG 91-141 on the basis that "the chances of litigation in this instance were more than remote, " Mr. Lockwood asserted that in the event a successful settlement with the Board could not be negotiated, OCR's Case Resolution and Investigative Manual confirms that OCR "does not have the power to litigate," but may only "initiate administrative proceedings . . . or . . . refer the case to DOJ for judicial proceedings . . . ." Thus, he concluded, "Unless the school district itself was proposing litigation, there was no 'pending litigation' whatsoever at the time of these negotiations. "
In correspondence directed to this office following commencement of this appeal, the Board explained:
In January 2009, Robert Chenoweth met with the Board in closed session to discuss the reopened OCR complaint and another piece of threatened litigation now pending in Scott Circuit Court. The Board was not requested to approve the specific terms of the proposed resolution agreement, but instead discussed with Robert Chenoweth and the Superintendent the defense strategy in responding to the OCR complaint, i.e., whether it was advisable to proceed toward early resolution or to defend against the allegations, and the strengths and weaknesses of the School District's position in the event settlement did not occur. Throughout the remainder of the time the resolution agreement was being modified and negotiated, Robert Chenoweth dealt directly with the Superintendent, and did not again discuss the resolution agreement with the Board in closed session. Any additional discussion by the Board in closed session with the Superintendent was in the nature of discussion of status and strategy, and was not for purposes of obtaining the Board's approval of the final language of the resolution agreement. At the conclusion of the negotiations, the final resolution agreement was approved by the Superintendent, on advice of legal counsel, who is generally authorized as chief executive officer of the Board to commit the resources of the School District. In order to expedite the transmission of the signed resolution agreement to OCR, the Superintendent designated Robert Chenoweth to sign the agreement on her behalf.
As Mr. Lockwood expected, the Board distinguished OAG 91-141, observing:
The matter under consideration by the Board in this matter was in a different procedural posture than the matter under consideration by the board at issue in that opinion. There, the board discussed an OCR complaint in closed session as a general, informational meeting. In the matter herein, the School District had been presented the availability of pre-investigation resolution of an administrative complaint, and the Board was entitled to meet with its legal counsel in closed session to discuss "such matters as strategy, tactics, [and] possible settlement. " As stated above, approval of the settlement document was not sought or given in that meeting, but instead only general direction to the Superintendent and legal counsel with regard to the strategy for addressing the reopened complaint.
In sum, it was Board's contention that it was "entitled to hear from its legal counsel regarding the strengths and weaknesses of its position . . . and the tactics and strategies which might be at issue if pre-investigation settlement was not reached," and that its January 2009 closed session therefore did not violate the Open Meetings Act. 2
We find that the Scott County Board of Education properly relied on KRS 61.810(1)(c) in conducting a closed session discussion with its attorney of the status and defense of the reopened OCR complaint at its January 13, 2009, meeting. We further find that no evidence exists that the Board secretly negotiated and approved a resolution agreement or secretly authorized its attorney to do so without Board approval. In view of our limited KRS 61.846(2) statutory charge, we make no finding on the propriety of the manner in which the resolution agreement was executed.
We find that 04-OMD-039, upon which the Board relies in support of its contention that the protection afforded by KRS 61.810(1)(c) "is broad enough to extend to closed session briefings by agency counsel on the strengths and weaknesses of a case, actual or threatened . . . ." 04-OMD-039, p. 11, is dispositive of the issue on appeal. A copy of that decision is attached hereto and incorporated by reference. Here, as in that decision, the parties have provided an extensive assessment of the applicable law, and we will not unnecessarily lengthen this decision with a recitation of same. Kentucky's Supreme Court has declared that KRS 61.810(1)(c):
applies to matters commonly inherent to litigation such as preparation, strategy, or tactics. Obviously, anything that would include the attorney-client relationship would also fall within this exception. The statute expressly provides that the litigation in question need not be currently pending and may merely be threatened. However, the exception should not be construed to apply 'anytime the public agency has its attorney present' or where the possibility of litigation is still remote.
Floyd County Board of Education v. Ratliff, above at 923-924. In our view, discussion of "strategy" and "tactics" is broad enough to extend to discussions concerning "the advisa[bility of] proceed[ing] toward early resolution or . . . defend[ing] against the allegations" in the reopened OCR complaint. Regardless of whether the reopened complaint was intertwined with the due process hearing or any other active or inactive litigation, or whether the Board's decision to seek resolution was the only practicable one, the Board was entitled to a briefing on the strengths and weaknesses of its position relative to the complaint which, if not negotiated to a successful resolution, might result in administrative proceedings to suspend, terminate, or discontinue federal financial assistance or referral for judicial proceedings.
We find that OAG 91-141, upon which Mr. Lockwood relies for the proposition that a school board cannot properly discuss an OCR communication in closed session, is factually distinguishable from the appeal before us. The former appeal centered on board discussions immediately following receipt of a communication from the U.S. Department of Education's Office of Civil Rights notifying the board that a complaint had been made but not identifying the complainant or the nature of the allegations. Under these facts, the board could not have meaningfully discussed the strengths or weaknesses of its position and the possibility of litigation was, at best, remote. In the appeal before us, years of legal wrangling preceded the June 5, 2008, notification of the reopening of the OCR complaint, and counsel for the Scott County Board of Education was in a far better position to assess his client's case and communicate its strengths and weaknesses. In OAG 91-141, the improper closed session discussion was, perforce, general in context and content. In the appeal before us, the proper closed session discussion focused on already disclosed allegations and specific strategy and tactics relative thereto. We therefore find OAG 91-141 inapposite.
We do not question Mr. Lockwood's keen interest, both personal and professional, in insuring transparency in the conduct of governmental affairs. Nevertheless, we must remind him that the General Assembly approved a number of exclusions to the general rule of openness for the public good, and that among these is KRS 61.810(1)(c). "From these exclusions, we must conclude that . . . the General Assembly has determined that the public's right to know is[, in some cases,] subservient to . . . the need for governmental confidentiality."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 578 (Ky. 1994). Here the public's interest must yield to the Scott County Board of Education's need to discuss the possible resolution of a reopened OCR complaint without publicly compromising its litigation posture.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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 proceeding.
Frank LockwoodRebecca SamsRobert L. Chenoweth
Footnotes
Footnotes
1 Mr. Lockwood questions whether the Board strictly complied with KRS 61.815(1)(a) prior to going into closed session by generally describing the nature of the business to be discussed and the reason for the closed session. Because he did not raise this issue, or issues relating to the adequacy of the Board's meeting notices, in his original complaint, we are foreclosed from addressing the issues on appeal.
2 We have considered the arguments advanced by Mr. Lockwood in his December 8, 2009, emails, copies of which were apparently not sent to the Board. He focuses on the conclusion of litigation relative to a Kentucky Department of Education due process hearing and the appeal of 06-ORD-191. Respectfully, we fail to see the relevance of this argument insofar as the subject of this appeal is the propriety of a closed session discussion of strategy, tactics, and possible settlement of the re-opened OCR complaint under KRS 61.870(1)(c). Although Mr. Lockwood has broader concerns, and his frustration is palpable, our review under KRS 61.846(2) is limited to a determination of whether the Board violated the Open Meetings Act by conducting closed session discussions of the June 5, 2008, reopening of the OCR complaint.