Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, we find that because the record on appeal contains conflicting evidence as to the genesis of the screening committee charged with recommending a candidate to fill a vacancy on the Jefferson County Board of Education to KDE's Commissioner, we cannot conclusively resolve the issue on appeal against or in favor of KDE and the screening committee. If KDE established, created, and controlled the screening committee, the committee's actions constituted a violation of the Open Meetings Act insofar as it conducted an unauthorized closed session in contravention of KRS 61.810(1) and failed to adhere to the requirements for conducting that closed session in contravention of KRS 61.815(1).
In a June 23, 2010, complaint directed to John Thompson, KDE Board Member Appointment Coordinator and chairman of the committee, The Courier-Journal and reporter Antionette Konz complained that the committee charged with recommending a candidate to fill the vacancy on the Board, which they denominated the Kentucky Department of Education Screening Committee, violated the Open Meeting Act at its June 22, 2010, meeting when it:
(1) convened a closed session of a quorum of its members at or before 11:45 a.m. on June 22, 2010, and another at approximately noon, both in violation of the Act;
(2) convened an open session beginning at approximately 12:15 p.m. on June 22, 2010, but promptly went back into closed session improperly by citing the exception set out in KRS 61.810(1)(f);
(3) failed to make available to the public a schedule of regular meetings, or to conform to such schedule. For example, no schedule announcing the closed session that occurred at or before approximately 11:45 a.m. June 22, 2010, was ever made available to the public.
As a means of remedying these alleged violations, The Courier and Ms. Konz proposed, inter alia, that "the agency . . . acknowledge that it is a public agency within the meaning of the Act, and agree to conform its conduct to the requirements of the Act from this point forward."
In a response dated June 28, 2010, KDE General Counsel Kevin Brown denied each of The Courier's allegations. Relying on past open meetings decisions of this office, Mr. Brown argued that "(t)he Open Meetings Act does not apply to the Commissioner's designees for the simple reason that they are individuals selected by a state officer, not a 'public agency' to provide a recommendation to a state officer, not a 'public agency. '" Continuing, he observed:
The Commissioner is not a "public agency" like the Kentucky Board of Education (KBE), but instead is the chief state school officer per KRS Chapters 156 through 158, specifically KRS 156.148. As the chief state officer, the Commissioner, not a "public agency, " is empowered in KRS 160.190 to select an individual to fill a local school board vacancy.
The Commissioner, a state officer, has determined that the best way for him to review candidates for a local school board vacancy under KRS 160.190 is to request a group of individuals to interview the proffered candidates and provide the Commissioner with a nonbinding recommendation as to the successful candidate. The Commissioner considers the recommendations of the designees, but the responsibility for the final decision regarding the appointment of an individual to a vacancy on a local school board is held by the Commissioner.
Addressing the "Local District Board Member Appointment Procedure," revised in April 2009 and updated on April 27, 2010, that appears on KDE's website, Mr. Brown asserted:
The complaint has argued that inaccurate information on the Kentucky Department of Education's (KDE) website, stating the designees are a screening committee established by the KDE, transforms these designees into a "public agency" subject to the Open Meetings Act's requirements. Inaccurate information such as this does not transform these designees into a "public agency" much as the fact that the gathering of "members" of a "public agency, " while not performing official business, does not transform their gathering into a "meeting" subject to the requirements of the Open Meetings Act. See 95-OMD-136; 00-OMD-147. In the alternative and without admission, even if these designees are determined to have been appointed by the KDE, this group is performing the function of a state agency officer and its meetings are not subject to the Open Meetings Act's requirements.
In the event this office determined that the screening committee was a public agency, KDE maintained that its "actions on June 22, 1010, complied with the provisions of the Open Meetings Act and their exclusion of members of the public, prior to the discussions which might lead to the [Commissioner's] appointment of an individual to the vacancy on the Jefferson County School Board, was proper under KRS 61.810(1)(f)." Given the conflicting evidentiary record before us, we cannot determine how the screening committee came into being, but find that if the committee that met on June 23, 2010, to interview candidates to fill a vacancy on the Jefferson County Board of Education, and thereafter make a recommendation to KDE's Commissioner, was established, created, and controlled by KDE, and not the Commissioner, it was a public agency within the meaning of KRS 61.805(2)(g). Under this scenario, the committee violated the Open Meetings Act by conducting an unauthorized closed session discussion and failing to observe the requirements for conducting that closed session. 1
We begin by focusing on the threshold question in this appeal: Was the committee that met on June 22, 2010, and whose membership consisted of KDE Board Member Appointment Coordinator John Thompson, Garrard County School Board Member Joe Brown, and Shelby County School Board Member Brenda Jackson, a public agency for open meetings purposes? KDE vigorously asserts that it was the Commissioner, and not KDE, that appointed these members for the purpose of "assist[ing] him in vetting candidates for a vacancy on a local school board of education." In support, KDE cites KRS 160.190, vesting exclusive authority in the Commissioner to fill vacancies on school boards but "contain[ing] no required procedure or factors for consideration." Filling this void, The Courier responds, is the published KDE "Local District Board Member Appointment Procedure," updated less than two months before the group met and the same month in which Jefferson County Board Member Ann Elmore vacated her seat. That policy remained on KDE's website on June 22, 2010.
According to KDE's website, authority for the policy is derived from KRS 160.190 . The policy recognizes that when a vacancy occurs, the Commissioner of Education is vested with exclusive authority to "make[] all appointments of members to local boards of education." Nevertheless, it delineates the responsibilities of the local superintendent, the KDE Board Member Appointment Coordinator, and screening committees " established by KDE to review all applications, interview qualified candidates, and develop a recommendation for the commissioner's consideration." (Emphasis added.) The screening committee members are thus charged with the duty to:
Meet at the scheduled time and location to interview candidates and develop recommendation for consideration of the Commissioner of Education. Prior to meeting, review all applications submitted. Participate in the interview of all qualified applicants. In committee, discuss applicants and work with other committee members to reach consensus on a first- and, if necessary, a second-place recommendation with rationale necessary to support the recommendation. Maintain complete confidentiality regarding committee discussions, information considered, deliberations and recommendation.
KDE dismisses this policy as "inaccurate information" but does not indicate what those inaccuracies are, how they got there, or why they remained on its website on the day Ms. Elmore tendered her resignation or the day on which the screening committee met to formulate a recommendation to the Commissioner by interviewing the candidates to fill the vacancy created by her resignation.
While we agree with KDE that inaccurate information does not alter facts, neither does an unsupported statement that the information is inaccurate. KDE presents no proof to verify the statement that the Commissioner selected the committee members, such as letters of appointment signed by the Commissioner, email messages notifying them of their appointment, or even phone messages documenting communication between the Commissioner, Mr. Thompson, Mr. Brown, and Ms. Jackson in the period after Ms. Elsmore tendered her resignation. Conversely, The Courier presents a written policy that clearly states that screening committees are "established by KDE," which appeared on KDE's website up to, and including, the day on which the screening committee met to interview candidates for the purpose of formulating its recommendation, but can offer no empirical evidence supporting its position that the published policy governed the selection of committee members.
It is for this reason that we find the authorities cited by KDE, and 95-OMD-71 in particular, inapposite. In that open meetings decision, the record on appeal confirmed that a university president's cabinet and leadership team were not public agencies for open meetings purposes because they were not, inter alia, "established, created, and controlled," by a public agency per KRS 61.805(2)(g). Instead, the record established, they "exist[ed] at the sole discretion of the [p]resident, and [their] composition, role, and use [were] defined by the president." The record in the appeal before us contains conflicting evidence, at best, as to the genesis of the screening committee. Absent empirical proof supporting either position, we cannot conclusively resolve the issue against or in favor of KDE. If the screening committee that met on June 22, 2010, was established and created by KDE under the terms of the published policy, and controlled by KDE to the extent its duties were defined by the policy, it was an "advisory committee . . . established, created, and controlled by a 'public agency' as defined in [KRS 61.805(2)(a), (b), (c), (d), (e), (f), or (h)."
Assuming that the screening committee was a public agency as defined at KRS 61.895(2)(g), we conclude that it violated the Open Meetings Act in conducting an unauthorized closed session for which improper notice was given at its June 22 meeting. We reject KDE's argument that the screening committees closed session discussion was permissible under the exception for "discussions or hearings that might lead to the appointment, discipline, or dismissal of an individual employee, member, or student . . . ." KRS 61.810(1)(f). As The Courier-Journal correctly notes, in an early opinion this office recognized that "there should be no secret understanding" on "[a] candidate's position on matters of public policy." OAG 77-674, p. 1. This statement appeared in an opinion addressing the propriety of closed session interviews of candidates to fill the vacancy created by the resignation of a board of education member. The Attorney General distinguished the question before him from an earlier opinion dealing with closed session interviews of applicants for school superintendents, OAG 77-392, recognizing the propriety of closed sessions in that context based on "the desire of the candidates to keep their candidacy confidential in order to avoid any disruption in their relationship with their current employer." We concluded that "some discussion of the reasons for electing a particular person should take place in an open meeting and that closed sessions should be held only to the extent that they are necessary for the protection of the reputations of the individuals involved." Id. 2 Because the candidates' names have appeared in the newspaper, 3 we can envision no "disruption to their relationship with their current employer" occasioned by interviews in open session. Because only one candidate will be selected, and the identities of the remaining candidates have already been disclosed, we can envision no means of preventing the public from drawing inferences about the remaining candidates. Unless there were "matters involving personal privacy" unique to one or more of the candidates that necessitated closed sessions, the screening committee was obligated to conduct its interviews with the candidates in open session. Our predecessors in the Office of the Attorney General firmly established that "there should be no secret understanding on [a candidate's] position on matters of public policy," and we are bound to observe their precedent.
Regardless of whether the screening committee conducted any part of its candidate interviews in closed session, it must also be said to have violated KRS 61.815(1) by failing to observe the requirements for conducting closed sessions by giving notice in the open meeting of the general nature of the business to be discussed, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. KDE offers no defense to this allegation, and we will not belabor the issue. The Kentucky Supreme Court has recognized that "prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session, " and that "there must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997). If, in fact, the screening committee owed its existence to KDE and not to the Commissioner, we find that it violated that provision of the Open Meetings Act by failing to adhere to the requirements for conducting a closed session codified at KRS 61.815(1).
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.
Jon L. FleischakerJames L. AdamsKevin C. Brown
Footnotes
Footnotes
1 On appeal, The Courier-Journal does not pursue the third violation alleged in its complaint. That allegation related to the committee's failure to adopt a schedule of regular meetings. It is unclear why The Courier did not pursue this issue. It is equally unclear that The Courier would have prevailed on this issue in light of 99-OMD-166, recognizing that the language of KRS 61.820 invests agencies "with some latitude in determining whether to meet on a regular or as needed basis," and in the latter case, treat all of their meetings as special meetings.
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2 It is by no means clear that the language of KRS 61.810(1)(f) extends to filling a vacancy created by an elected official's departure. While a candidate is "appointed, " that appointment is not synonymous with hiring, the context in which the exception is most often employed.
3 See Exhibit 1, July 2, 1010, open meetings appeal, log number 201000248.
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