Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Martin County Board of Education violated the Open Meetings Act at its regular meeting on July 10, 2012. For the reasons that follow, we find that the Board violated the Act.
By letter dated July 23, 2012, Gary Ball, editor of the Martin County-Tug Valley Mountain Citizen, submitted a written complaint to Board Chairman Kathleen Price, in which he alleged that at its July 10 meeting the Board improperly went into a closed session pursuant to KRS 61.810(1)(f) to discuss whether to enter into a new four-year contract with the school superintendent, Mark Blackburn, whose current contract was due to expire June 30, 2013. He further alleged that one board member, Kim Meek, who was not present at the meeting, had violated the Open Meetings Act by discussing the matter with the superintendent outside of a public meeting. As a means of remedying the alleged violations, Mr. Ball proposed that the Board revisit the discussion in open session, rescind the vote, and/or agree not to address the issue until the next election of Board members should occur in November 2012. It does not appear from the record that Mr. Ball received any reply pursuant to KRS 61.846(1). He initiated this appeal on July 27, 2012.
The Board's response to this appeal was provided by attorney John R. Triplett on July 31, 2012. Mr. Triplett does not represent that the Board made any response to Mr. Brown's complaint. Since the record does not reflect when the Board received the July 23 letter, 1 and this appeal was initiated only four (4) days later, we are unable to conclude whether the Board committed a procedural violation of KRS 61.846(1) by failing to respond.
As to the allegations of what took place at the July 10 meeting, Mr. Triplett does not deny the conduct of the Board, but argues that it did not constitute a violation of the Open Meetings Act. He correctly states that KRS 61.810(1), which requires meetings of public agencies to be public, only applies to "meetings of a quorum. " Therefore, an isolated discussion by a single board member with the superintendent would not, by itself, be subject to the Act. Although KRS 61.810(2) prohibits the practice of a "series of less than quorum meetings" adding up to a quorum as a means to evade the Open Meetings Act, this is not alleged here. "Because there was no quorum, there was no meeting." 94-OMD-63. 2
Regarding the discussion of whether to enter into a new four-year contract with the superintendent, effective upon expiration of the current contract, Mr. Ball argues that this does not fall under the scope of KRS 61.810(1)(f). The subsection allows the use of a closed session for "[d]iscussions 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." It concludes with an admonition that "[t]his exception shall not be interpreted to permit discussion of general personnel matters in secret."
The decisions and opinions interpreting the Open Meetings Act regard a school superintendent as an "individual employee" within the meaning of KRS 61.810(1)(f). Carter v. Smith, 366 S.W.3d 414 (Ky. 2012); 12-OMD-106; OAG 91-144; OAG 77-392. "Consistent with the rule of strict construction codified at KRS 61.800, [the Attorney General] has narrowly read the terms appointment, discipline, and dismissal to insure that the words are given their ordinary, and not a strained or overly expansive, meaning." 10-OMD-023 (citing Lynch v. Com., 902 S.W.2d 813, 814 (Ky. 1995)). This office has held that the underlying reason for this "personnel" exception is to protect employees' interest in their reputations when their personal or professional merits are under consideration for hiring, firing, or discipline.
The Court held in Carter, supra, that the terms "appointment, discipline, or dismissal" did not encompass a factual situation where a board was discussing an arrangement whereby the school superintendent would voluntarily resign and be awarded a contract as a consultant. Since "resignation and consultancy were the topics discussed in the closed session, " topics which are not included in KRS 61.810(1)(f), the case was not one of appointment or dismissal. 366 S.W.3d at 421. The Court noted:
A public agency's authority to go into a closed session relative to personnel matters is severely restricted. Under the personnel exception, a public agency may enter closed session only for "discussions or hearing which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student." KRS 61.810(1)(f). These three topics are the only personnel matters a public agency may discuss in closed session. Discussions of any other matters are expressly precluded.
Id. at 420.
It has been the rule in the decisions of this office that "the terms 'appointment' and 'reappointment' are not synonymous when the latter term is used to describe the continued employment of a current agency employee." 11-OMD-066 (citing 94-OMD-63); see also 96-OMD-97 (discussion in closed session was proper only because "there was no contract in effect at that time"). Whereas "the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion" concerns a mere attempt to secure the continued employment of an existing employee. 11-OMD-066. Therefore, the Board's discussion of a new contract for the current superintendent did not relate to the "appointment" of an employee.
Furthermore, this was not a discussion of whether to terminate the superintendent's contract early for cause, but whether to make a renewed four-year contract with him beginning almost a year in the future. There is thus no credible argument that it related to "discipline" or "dismissal" of the superintendent. 3 Accordingly, since the discussion in closed session did not concern the appointment, discipline, or dismissal of an employee under KRS 61.810(1)(f), the Board violated the Open Meetings Act. 4
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.
Distributed to:
Mr. Gary BallJohn R. Triplett, Esq.Ms. Kathleen Price
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