Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Superintendent Screening Committee of the Bath County Board of Education violated the Kentucky Open Meetings Act in failing to "provide for a schedule of regular meetings" and make that schedule available to the public in accordance with KRS 61.820 , failing to comply with requirements codified at KRS 61.815(1) prior to holding any closed meetings between July 1, 2012, and August 28 2012, and improperly discussing general personnel matters prohibited under KRS 61.810(1)(f) during one or more of those closed meetings. Because the Screening Committee is a "public agency" within the meaning of KRS 61.805(2)(e), it was required to either comply with KRS 61.820, or treat all of its meetings as special meetings and strictly comply with KRS 61.823. In admittedly failing to comply with either KRS 61.820 or 61.823, the Screening Committee violated the Open Meetings Act. Further, the Screening Committee violated the Act in failing to comply with notice requirements for closed sessions codified at KRS 61.815(1) and improperly discussing general personnel matters in private.
By e-mail directed to Board Chairman Hurschell Rawlings on September 10, 2012, Ms. McFarland submitted a complaint 1 relating to actions that occurred sometime during the period of July 1, 2012, and August 28, 2012. First, Ms. McFarland alleged that the Superintendent Screening Committee "met on no less than two occasions without serving proper notice" in violation of the Open Meetings Act, noting that the Screening Committee is, by definition, a "public agency" under KRS 61.805(1). Second, Ms. McFarland alleged the Screening Committee violated the Act in failing to comply with KRS 61.815(1)(mistakenly cited as KRS 61.810) if any of the meetings were closed meetings. Third, Ms. McFarland alleged that the Screening Committee illegally entered into a closed session (s) "to discuss general personnel matters in secret. " To remedy these alleged violations, Ms. McFarland proposed that the Screening Committee discuss "at a future meeting, in an open and public session, " those matters that were improperly discussed in the closed meetings/sessions held "sometime and/or somewhere" between the period of July 1, 2012 and August 28, 2012, specifically "general timelines and discussion leading to establishment of superintendent candidacy criteria, screening criteria, timelines, and any other stipulations and/or guidance used by the screening committee for the purposes of selection." Ms. McFarland further proposed that any final action(s) taken as a result of the improperly called session (s) be declared null and void. Mr. Rawlings responded via e-mail the next day, advising that he called a special meeting of the Screening Committee for September 13, 2012, "for the purpose of complying with her request." By letter dated September 17, 2012, Ms. McFarland initiated this appeal, summarizing the actions of the Board and the Screening Committee during the special meetings held separately on September 13, 2012, which, in her view, did not remedy 2 the violations. Because any issues regarding events after Ms. McFarland's September 10 complaint are not ripe for review, our analysis will focus exclusively on the issues raised in her September 10 complaint per KRS 61.846(1) and (2). 3 See 06-OMD-211.
Upon receiving notification of Ms. McFarland's appeal from this office, legal counsel for the Screening Committee responded on its behalf, explaining, in relevant part, as follows:
The Screening Committee had four meetings prior to any Board action being taken: July 31, 2012; August 8, 2012; August 14, 2012; and August 22, 2012. It is the validity of these meetings that has been disputed. A representative with the Kentucky Education Association had evidently counseled the Screening Committee that since it was a "committee" and not a "board," the [Open Meetings Act] did not apply, especially due to the confidential[ity] concerns of the hiring process.
On August 28, 2012, the Board held a valid regular meeting and went into executive session pursuant to KRS []61.810(1)(f) along with the Screening Committee for discussion and possible action of the [Screening Committee]. After properly coming out of executive session, a motion was then passed to interview the two (2) candidates the Screening Committee recommended to the Board.
. . .
. . . While there is a question as to the proper notice given, if any, of these four (4) meetings of the Screening Committee prior to the meeting with the Board on August 28, 2012, the Screening Committee did not have regular meetings as envisioned by KRS []61.820 and had been charged by the Board regarding applicant confidentiality. . . . Thus, a violation, if any, was not willful, but [committed] in attempting to maintain the confidentiality of the process.
While the record on appeal contains no evidence to suggest bad faith on the part of the Screening Committee, the record on appeal does conclusively establish that multiple violations of the Open Meetings Act were committed.
The Screening Committee is unquestionably a "public agency" for purposes of the Open Meetings Act. To hold otherwise "would clearly thwart the intent of the law." Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (Ky. 1987)(holding that Presidential Search Committee created by action of the UK Board of Trustees, a public agency created by statute, is itself a public agency) . 4 As the Attorney General has consistently recognized, our analysis must be guided by the legislative statement of intent set forth at KRS 61.800 , pursuant to which "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." In construing this provision, the Kentucky Supreme Court held that public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny," Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997), since this declaration "is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency." Presidential Search Committee at 886.
"Public agency" is broadly defined at KRS 61.805(2) which, in relevant part, expressly provides that "public agency" means "[a]ny body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act[.]" KRS 61.805(2)(e). The Screening Committee was created pursuant to statute, namely KRS 160.352(2) , which provides: 5
Each board of education shall appoint a superintendent of schools after receiving the recommendations of a screening committee. A screening committee shall be established within thirty (30) days of a determination by the board of education that a vacancy has occurred or will occur in the office of superintendent, except that when the board determines a vacancy will not occur before six (6) months from the date of determination, the board shall establish a screening committee at least ninety (90) days before the first date on which the position may be filled.
Because the Screening Committee is, by definition, a "public agency" within the meaning of KRS 61.805(2), it was required to comply with procedural and substantive provisions of the Open Meetings Act notwithstanding the incorrect advice to the contrary upon which it apparently relied. 6
The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), provides that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]" Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of a public agency at which either public business is discussed 7 or action is taken. KRS 61.820 provides that all meetings of all public agencies, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public." It further mandates that all public agencies "provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. " The term "meeting" is broadly defined at KRS 61.805(1) as "all gatherings of every kind . . . regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. " Thus, all gatherings of a quorum of the Screening Committee at which it discussed public business or took action were meetings of a public agency subject to provisions of the Open Meetings Act. See 06-OMD-068 (advisory role of committee does not warrant a different outcome).
On appeal the Screening Committee acknowledged that four separate meetings were held in the specified time frame, and further acknowledged "there is a question as to the proper notice given, if any, of these four (4) meetings" held prior to the Board's August 28 meeting. In 10-OMD-120, this office found that as in 03-OMD-021, the agency whose actions were at issue "'has not substantiated that it has adopted a schedule of regular meetings and made it available to the public," and "thus it failed to demonstrate that [it acted] in compliance with the requirements of KRS 61.820.'" 10-OMD-120, p. 3, quoting 03-OMD-021, p. 4. There was no question as to whether the public agency needed to meet on a regular basis in those cases. However, in 99-OMD-166, this office was asked to determine whether the City of Benton Park Board's failure to establish a schedule of regular meetings constituted a violation of KRS 61.820 . Having quoted the language of KRS 61.820, the Attorney General reasoned:
[T]he phrase "or by whatever other means may be required for the conduct of business of that public agency" invests the Board with some latitude in determining whether to meet on a regular or as needed basis. In the latter case, the Board must treat all of its meetings as special meetings and scrupulously comply with the notice requirements set forth at KRS 61.823. This, again, would promote the express purpose for which the Open Meetings Law was enacted, namely, to maximize notice of public meetings, in the same manner as a regular schedule of meetings, and at the same time eliminate the needless expenditure of public resources for unnecessary meetings. . . .
While we continue to ascribe to the view that the Open Meetings Act contemplates that public agencies will establish a regular me[e]ting schedule "by ordinance, order, resolution, [or] bylaw[s]," and that this method of conducting meetings is clearly favored , we conclude that the Park Board's failure to do so does not violate the Open Meetings Law so long as the Board strictly complies with the requirements of KRS 61.823, treating all of its meetings as special meetings.
99-OMD-166, pp. 5-6 (some emphasis added). 8
The Screening Committee has not disputed the applicability of KRS 61.820, noting instead that it "did not have regular meetings as envisioned by" KRS 61.820. Compare 10-OMD-143. Even assuming the Screening Committee had asserted that its failure to comply with KRS 61.820 was due to a lack of sufficient business to justify meeting on a regular basis, however, the fact remains that it was required, in the alternative, to " scrupulously comply" with all of the notice requirements for special meetings codified at KRS 61.823 as every meeting is either a regular meeting or a special meeting. The Screening Committee has not disputed that it failed to comply with KRS 61.820 nor has any evidence been presented to suggest compliance with KRS 61.823 was attempted; rather, it conceded "there is a question as to the proper notice given, if any," of the meetings held. "The language of the statute directing agency action is exact." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). KRS 61.823 requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least twenty-four (24) hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed . . .," or sent via electronic mail per KRS 61.823(4)(b). In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. Public agencies must comply with all of these requirements. See 10-OMD-168 (copy enclosed). In failing to comply with KRS 61.820, or comply with all notice requirements for special meetings codified at KRS 61.823, the Screening Committee violated the Open Meetings Act.
A review of the minutes from the challenged meetings also reveals no attempt by the Committee to comply with KRS 61.815(1) notwithstanding the admittedly private or closed nature of those meetings. Recognizing that extraordinary circumstances occur which might justify a public agency in conducting public business during a closed session, the General Assembly created a number of exceptions to the general rule codified at KRS 61.800, which are codified at KRS 61.810(1)(a)-(n). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1), pursuant to which a public agency is required to satisfy the following requirements before conducting closed sessions authorized by KRS 61.810: (a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session; (b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session; (c) No final action may be taken at a closed session; and (d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
In construing KRS 61.815, Kentucky's highest courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." Floyd County Board of Education v. Ratliff at 923, citing E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 1990). Consequently, "the courts of the Commonwealth [and this office] must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id. Decisions issued by the Attorney General over the years regarding compliance with KRS 61.815(1) are consistent with Floyd County Board of Education, above . Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the Ratliff court reasoned 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. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed[.]" Id. at 924. Regardless of whether discussion(s) was actually restricted to a topic permissible under KRS 61.810(1)(f), any discussions between Committee members "concerning matters not identified in the open meeting with proper notice [were] a violation of the Open Meetings Act and constitute[d] illegal conduct. Id.
With regard to application of KRS 61.810(1)(f) specifically, the analysis contained in 12-OMD-102, a copy of which is attached hereto and incorporated by reference, is controlling. That exception authorizes public agencies to hold a closed session only for "[d]iscussions or hearings which might lead to appointment, discipline, or dismissal of an individual employee, member, or student. . . . This exception shall not be interpreted to permit discussion of general personnel matters in secret. " By enacting KRS 61.810(1)(f) , the General Assembly "specifically intended to close discussions only of these three subjects due to the potential for reputational damage. Closed session discussions of other matters are expressly precluded by KRS 61.810[(1)(f)]." OAG 83-415, p. 2. A review of the line of decisions referenced in 12-OMD-102 confirms that a public agency complies with the requirements of KRS 61.815(1)(a) and 61.810(1)(f) by announcing, during open session, the general nature of the business to be discussed in closed session (appointment, discipline, or dismissal of an individual employee (s)/member(s)), the specific reason for the closed session (which of these particular actions is contemplated), and which of the exceptions codified at KRS 61.810 is being invoked (KRS 61.810(1)(f)), none of which the Screening Committee did here. 12-OMD-102. These omissions violated the Act. However, this office has recognized that it "is counterintuitive to suggest that such advisory bodies lack authority to conduct closed session discussions of the candidates' qualifications because they are not empowered to make the appointment. " 12-OMD-139, p. 4. Although their role is to make recommendations, "they enjoy the same right to conduct closed session discussions 'that might lead to the appointment . . . of an individual employee' as the agencies that created them, and for the same reasons, namely the protection of the reputational interests of unsuccessful candidates. " Id., pp. 4-5. That said, any discussion of general personnel matters, including the preparation of a "checklist of strengths and weaknesses" placed on each application, the number of recommendations to submit for consideration, the guidelines and procedure for screening applicants, etc. exceeded the scope of KRS 61.810(1)(f).
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:
Lisa McFarlandHurschell RawlingsSteve MeadowsDana Fohl
Footnotes
Footnotes
1 Ms. McFarland submitted her complaint via e-mail, which is not authorized under KRS 61.846(1); however, a public agency can waive the requirement of a written complaint expressly or, as in the instant case, implicitly with a course of conduct.
2 Because the role of this office in adjudicating a dispute under the Open Meetings Act is limited to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," the Attorney General declines to comment on the remedies proposed or implemented. 08-OMD-164, p. 2; 11-OMD-162; 12-OMD-146.
3 Accordingly, discussion regarding those portions of the Screening Committee's response to Ms. McFarland's appeal which address the September 13 meetings have no bearing on the legal issues presented here and thus will not be set forth or summarized herein; likewise, the majority of Ms. McFarland's reply letter dated September 21, 2012, questions whether the Screening Committee was properly established, an issue not raised in her complaint, actions of the Board, which are irrelevant here, and issues regarding creation and maintenance of public records, which are not justiciable in the context of an Open Meetings Appeal. To the extent Ms. McFarland questions whether the Board and/or the Screening Committee fully complied with relevant provisions of KRS Chapter 160, this office makes no finding as the interpretation or application of that statute is beyond our purview.
4 It is the opinion of this court that [KRS 61.805(2)] . . . means that a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency." Presidential Search Committee, above , at 886.
5 Also included among the definitions of "public agency" codified at KRS 61.805(2) is "[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, . . . established, created, and controlled by a 'public agency' as defined in" subsections (a)-(f) or (h) of that provision. KRS 61.805(2)(g). See 97-OMD-139; 05-OMD-117; 06-OMD-068; 09-OMD-168. As indicated, KRS 160.352(2) provides that "the board shall establish a screening committee . . . ." Accordingly, the Screening Committee would most likely fall within this definition as well. Because the Screening Committee is a "public agency" within the meaning of KRS 61.805(2)(e), discussion of whether the Screening Committee is "controlled" by the Board as required under KRS 61.805(2)(g) is unnecessary.
6 The Screening Committee did comply with KRS 61.835, pursuant to which:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions taken at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
Legal counsel for the Screening Committee provided this office with a copy of the minutes from the meetings held on July 31, 2012, August 8, 2012, August 14, 2012, and August 22, 2012.
7 In Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."
8 On many occasions, the Attorney General has recognized that "[t]here are only two kinds of meetings -- regular meetings and special meetings." 94-OMD-50, p. 4. Accordingly, "[t]he public has a right to expect a public agency . . . to follow its regular schedule or to call special meetings following the required notice, delivery, and posting provisions pursuant to KRS 61.823." 92-OMD-1677, p. 3.