Opinion
Opinion By: Jack Conway, Attorney General; Ryan Halloran, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Bell County Board of Education ("the Board") violated provisions of the Open Meetings Act when, at a regular meeting on February 18, 2014, it went into executive session for the announced purpose of discussing "an expulsion matter," "personnel, " and "litigation," and reached a disposition of the expulsion matter in closed session without conducting a public vote. For the reasons that follow, we find that the Board's actions were in violation of the Act if it disposed of a disciplinary matter without a public vote or discussed general personnel matters during an executive session.
In an undated complaint to Board Chairman Kenneth Sams, Gary Smith alleged that the Board went into closed session at the meeting on May 7, 2013, to discuss the following items indicated on the agenda: "1) Expulsion Hearing, 2) Personnel and 3) Litigation." He stated that the chairman "read aloud the statute declaring that the board was entering into Executive Session and the purposes of it," after which "[t]he Board members, the superintendent and others" went into closed session in an adjacent room. He added:
After over an hour in the Executive Session, there was a lot of talking in the hallway including Chris Warren, the district's Director of Pupil Personnel, on his cell phone, calling parents about what the "board had decided in the hearing". He further told the person on the phone where the student should report to school the next day. Based on the phone call I overheard, it is most evident that the board had decided on a final action in the Executive Session and that is contrary to the law and your own policies.
After hearing Mr. Warren's phone discussion, you, the other members of the Board and the Superintendent returned to the Boardroom and immediately began discussing the rest of the meeting agenda items. There was no mention of the final action the Board took in the Executive Session. Mr. Warren's phone conversation clearly indicated that a decision had been made during the Executive Session.
Mr. Smith further pointed out that no vote was taken on the expulsion matter. He suggested various remedies for the alleged Open Meetings violation, pursuant to KRS 61.846(1).
On March 17, 2014, the Board's attorney, Shea Dunn Yoakum, replied in part:
At the meeting conducted on February 18, 2014, before entering into Executive Session, the Board Chairman properly read the mandates of KRS 61.810 and set forth the specific items to be discussed by the Board in Executive Session. The Board then properly made a Motion to enter into Executive Session. ? The Board then entered into Executive Session to address three (3) issues: (1) an expulsion matter; (2) personnel; and (3) litigation, which are excepted from the general requirement of Open Meetings, pursuant to KRS 61.810. ?
While there was an expulsion matter to be discussed in Executive Session on that date, the minor child in that matter did not request a public hearing; therefore, no specifics will be discussed regarding what was conducted relative to the student issue as such matters are protected by FERPA. However, I will state that there was an administrative disposition of the matter that relieved the Board from making any decision relative to the matter of expulsion. The Board only has the power to expel a student, pursuant to KRS 158.150(6). Other disciplinary dispositions generally are authorized by the school administration or superintendent. The Board made no decision on the expulsion of that student that evening. Due to student confidentiality, I am not at liberty to give you details of the administrative disposition taken by the Superintendent. Since there was no action taken by the Board regarding that expulsion, there was no recommendation made by the Superintendent, no discussion regarding that decision in open session, or a vote taken by the Board on that matter. The Board took no final action in Executive Session at that February 18, 2014 board meeting, and did not violate the Open Meetings Act. ?
(Emphasis omitted.) Mr. Smith's undated appeal to the Attorney General was received by this office on April 8, 2014.
In a response to the appeal tendered by Ms. Yoakum on April 14, 2014, the Board points out that pursuant to KRS 158.150(6) a board of education "only has the power to expel or not expel a student," whereas the power to impose a suspension is conferred on the superintendent, principal, assistant principal, or head teacher. Ms. Yoakum states that "[t]he student's school record would reflect that he/she was not expelled, which is the only action that the Board had authority to take." Therefore, she argues that the Board took no final action on the expulsion matter and therefore was not required to discuss or vote on the matter in open session.
The expulsion of a student may, after proper notice, be discussed in closed session pursuant to KRS 61.810(1)(f), which makes an exception to open meetings 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." KRS 61.835, however, provides that "[t]he minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded. " Accordingly, we have stated:
The purpose of a closed session is to allow free discussion by the members and there are no statutory restrictions on how the discussion may be conducted. ? But if final action is finally taken, it must be taken in open session and the vote of each member, or his abstention, must be recorded in the minutes.
OAG 82-341.
If the Board directed the school's administration to make an "administrative disposition" which concluded the Board's involvement in the matter, this would represent final action by the Board. However, if the school's administration voluntarily determined it was making an administration disposition, short of expulsion, then the Board took no action and did not violate the Open Records Act.
There is nothing in the record to establish what the "litigation" or "personnel" matters were which the Board also discussed in its executive session. We caution that if the personnel matters were anything other than "[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student," the discussion exceeded the scope of KRS 61.810(1)(f), which "shall not be interpreted to permit discussion of general personnel matters in secret." Thus, any discussion of general personnel matters would have violated KRS 61.810(1), which requires meetings "at which any public business is discussed or at which any action is taken" to be open to the public.
Additionally, while the record is incomplete regarding the exact content of the Board's public notification for the closed session, we note that KRS 61.815(1)(a) requires:
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.
(Emphasis added.) Thus, the notification must have included specific citations to subsections (1)(c) and (1)(f) of KRS 61.810. Furthermore, it is not sufficient to state the nature of the business to be discussed with a one-word label such as "litigation" or "personnel. " See, e.g., 03-OMD-221 ("litigation"); 12-OMD-102 ("personnel" ). Nor do these labels give an indication of the reason why the closed session is necessary. As this office has long recognized:
[T]he Open Meetings Act . . . contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed. In construing KRS 61.805 to 61.850, the Supreme Court observed:
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1987). With specific reference to KRS 61.815, the Court declared that prior to going into closed session, the public agency "must state the specific exception contained in the statute which it relied upon," and give "specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting." Id. at 924. In view of the disparate nature of the twelve exceptions, there can be no bright line test for determining if specific and complete notification has been given. However, consistent with the right of the people to "remain[] informed so that they retain control over the instruments they have created" (1974 HB 100, Preamble), we believe that the notification must include both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in sufficiently specific terms to enable the public to assess the propriety of the agency's actions.
00-OMD-64 (citation form updated). Merely invoking a single word such as "litigation" or "personnel" amounts to less than "agency recitation of language of the exception authorizing the closed session, " and therefore is clearly inadequate to comply with KRS 61.815(1).
In summary, we find that the Board's actions were in violation of the Act if it disposed of a disciplinary matter without a public vote. The Act was also violated if the Board discussed general personnel matters in closed session or failed to give public notice of the closed session in a manner consistent with this decision.
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 SmithShea Dunn Yoakum, Esq.