15-OMD-090

15-OMD-090

May 20, 2015

In re:        Donald Story/Clinton County Board of Education

Summary:        Clinton County Board of Education did not violate KRS 61.815(1)(c) by taking final action regarding student disciplinary matter during closed session properly held under authority of KRS 61.810(1)(f) on January 8, 2015, as existing legal authority supports position that discussions which might lead to discipline of a student are excepted from the requirement of taking final action during the open portion of the meeting per KRS 61.815(2). The Board violated the Act in failing to post a written notice containing the date, time, and place of the special meetings held on November 11 and 17, 2014, and December 15, 2014, as well as the agenda in a “conspicuous place” at least twenty-four (24) hours in advance of each meeting per KRS 61.823(4)(c).            

Open Meetings Decision

        Donald Story initiated this appeal challenging the denial by the Clinton County Board of Education (Board) of his two April 20, 2015 complaints relating to its January 8, 2015 regular meeting and the special meetings it held on November 11, 2014, November 17, 2014, and December 15, 2014.  Mr. Story first alleged that “in taking a vote while it was still in closed session” during the January 8, 2015 “expulsion hearing of my son,” and in failing to “record the motion and the vote that was held in closed session” during that meeting, the Board violated KRS 61.815(1)(c) and 61.835, respectively.  To remedy these alleged violations, Mr. Story proposed that its final action “should be made null/void.”  In his other complaint Mr. Story alleged that by failing to post a notice containing the agenda for the special meetings held on the specified dates in a “conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency” at least twenty-four (24) hours before the meetings, the Board violated KRS 61.823(4)(c).  To remedy these violations, Mr. Story proposed that the Board “[a]dmit guilt . . . and make it known to the public by the media” and “[m]ake [the] meetings null/void.”

        By letter dated April 27, 2015, legal counsel for the Board responded to both complaints.¹  Counsel initially observed that his client had thirty (30) days per KRS 61.846(4) in which to appeal 15-OMD-057 (In re: Donald Story/Clinton County Board of Education, rendered on March 26, 2015) to Clinton Circuit Court and chose not to appeal that Open Meetings Decision.²  The Board maintained that Mr. Story was attempting to reargue that the Board violated the Act by taking its final action relating to his son’s misconduct during the closed session held on January 8, 2015.  Accordingly, counsel reiterated its position that the “entire disciplinary proceeding relating to a student is authorized as a matter of law to be conducted in closed session.”  (Original emphasis.) Acknowledging that KRS 61.815(1)(c) sets forth the general rule that no final action may be taken during a closed session, the Board argued that KRS 61.815(2) expressly provides that public agencies are removed from the requirements of KRS 61.815(1) “as relates to the applicable Open Meetings Act exception set forth in KRS 61.810(1)(f) ‘only so far as (f) relates to students.’  Thus, as held in OAG 81-135, the entirety of a student disciplinary matter may be held in closed session, including the final action taken, absent a parent exercising the choice to open the expulsion hearing to the public.”

        With regard to Mr. Story’s complaint regarding compliance with KRS 61.823(4)(c), counsel asserted that it appeared “to be nothing more than a suggestion that the now final 15-OMD-057 . . . stands for the proposition that any special meeting of the [Board] preceding the one addressed in the [Decision], January 8, 2015, also was in violation of the Open Meetings Act.”  The Board is “without sufficient information” to accept or deny that a violation was committed relative to special meetings held on November 11 and 17, 2014, and December 15, 2014, due to its alleged failure to post a proper notice containing the agenda in a conspicuous place.  “What the [Board] will do in the future is to adhere to” 15-OMD-057 as to properly noticed special meetings.  The Board otherwise declined to comply with Mr. Story’s proposed remedies “[e]ven assuming for the sake of argument there was not a conspicuous posting as to any or each of the referenced meetings[.]” 

        On appeal the Board correctly observed that issues arising from the interplay between student disciplinary hearings and the Open Meetings Act have been the subject of multiple prior decisions and opinions by this office almost since inception of the Act. Quoting OAG 77-674, the Board noted that its reasoning was based on the “literal language of the statute as enacted in 1974.”  Although KRS 61.815(2) has been amended since 1977, the Board advised, “the express reference to ‘so far as [ ] relates to students’ has been present from the beginning and was the basis for the initial exclusion of student expulsion hearings from the remainder of the provisions of KRS 61.815.”  Relying upon OAGs 80-248, 81-135, and 82-179, in further support of its position that final action regarding a student disciplinary matter can be properly taken during a closed session as otherwise prohibited, the Board further advised that in 93-OMD-61 this office relied on both OAGs 81-135 and 82-179 “in responding to a complaint that a local school board had taken its final action during a closed session concerning student discipline, and found no violation in relation to the handling of the closed session.”  The Board correctly observed that in 97-ORD-4 the Attorney General acknowledged once again that OAGs 81-135 and 82-179 “’confirm the board’s right to maintain the privacy of the people involved in student discipline matters . . . .”  The minutes of the meeting in dispute provided “only ‘that the board convened and immediately went into executive session . . . to discuss individual student discipline.’”³

        In addressing Mr. Story’s allegation regarding its failure to record the final action concerning discipline of his son in the publicly available minutes of the January 8, 2015 meeting, the Board clarified that its reference to OAG 81-135 and KRS 61.815(2) was intended to address both aspects of his complaint “as the very purpose of providing privacy for student disciplinary matters and permitting final action to be taken in closed session is to preclude public disclosure of the outcome of the disciplinary hearing.”  The Board argued that recording the final action of the agency in the minutes, which are publicly accessible under KRS 61.835, “would negate the OAG’s reasoning in the referenced opinions and would negate the legislative intent in excluding student disciplinary matters from the requirement of taking action in open session.”  On this point counsel argued that OAG 81-235 is also instructive as the Attorney General held that it falls within the discretion of a board of education whether to publicly announce what action was taken during a closed session relating to student discipline.  Such discretion would be meaningless in the Board’s view if the outcome of the student disciplinary hearing must be recorded in the publicly available minutes.

        With regard to Mr. Story’s complaint regarding compliance with KRS 61.823, the Board reiterated its original response.  “While the Board had the longstanding practice to place the notice and agenda immediately inside the parking lot door to the meeting room at the board’s central office,” counsel advised, “it is possible for one or more of those three (3) referenced meetings that the notice and agenda were also available near the main public entrance to the building where the meeting(s) occurred and which houses the main office of the agency.”  The Board maintained that its “typical practice” of posting the notice containing the agenda “at or near the entrance to the meeting room is at least as conspicuous as the posting methodology that was approved in 10-ORD-135[.]” Absent evidence of an “attempt to conceal” the notice, counsel emphasized, this office declined to find a violation of KRS 61.823(4)(c) in that case.  Based upon the following, this office finds that governing precedents refute Mr. Story’s position regarding the propriety of the Board taking final action regarding a student disciplinary matter during a closed session; however, the Attorney General has already ruled that its “typical” or “longstanding” practice of placing special meeting notices on a table inside of the building’s entrance does not satisfy KRS 61.823(4)(c) and the record on appeal here presents no basis to depart from the reasoning contained in 15-OMD-057 or the authorities upon which it was premised.          

        The first narrow question presented is whether the Board violated KRS 61.815(1)(c) in voting to expel a student during the closed session held on January 8, 2015. KRS 61.810(1)(f), upon which the Board properly relied in conducting the subject closed session, expressly authorizes public agencies to hold 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. . . .”  (Emphasis added.) 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; OAG 81-135 (purpose of exempting disciplinary hearings from this requirement is to protect reputation of the individual, a student in this case); see 97-ORD-4.

        KRS 61.815(1)(c) expressly provides that “[n]o final action may be taken at a closed session.”  However, discussions held under authority of KRS 61.810(1)(f), “so far as (f) relates to students,” are not subject to this requirement per KRS 61.815(2).  As the Board correctly argued, this office has consistently recognized that final action by a school board regarding a student disciplinary matter can be properly taken during a closed session. Early on, the Attorney General held that “[t]he whole disciplinary proceeding may be conducted in closed session provided the requirements of due process are observed.”  OAG 77-674; OAG 81-135 (agreeing that school board was not required to take final action regarding discipline of a particular student during open session); OAG 80-248; OAG 82-179; 97-ORD-4. This line of authority validates the Board’s position regarding the propriety of taking final action regarding a student disciplinary matter during a closed session; accordingly, this office has no basis upon which to find that a violation of KRS 61.815(1)(c) was committed when the Board voted to expel a student during its January 8 closed session.  To the extent 14-OMD-117, which Mr. Story cited in his complaint and which did not expressly address KRS 61.815(2), can be construed in a manner inconsistent with the line of authority upon which our holding today is premised, that decision is hereby modified.

        Governing precedents also lend support to the Board’s position that documenting the final action taken during the closed session, as otherwise required under KRS 61.835, would negate the intent behind the statutory exemption from the requirement codified at KRS 61.815(1)(c). In OAG 81-235, this office was asked “whether a school board, when it goes into a properly held closed session permitted by KRS 61.810, is required to have minutes taken of the closed session and is required to make the minutes available for public inspection.”  Resolution of that issue required this office to analyze the interplay between KRS 61.835 (minutes of action taken at every meeting of a public agency, “setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded” and “open to public inspection”) and KRS 160.270(2) (requiring secretary to be present at board meetings with limited exceptions and “record in a book provided for that purpose all its official proceedings,” which is “a public record open to public inspection”) as well as the legislative intent of KRS 61.810. OAG 81-235, p. 1. The Attorney General reasoned that “it would contradict common sense and proper statutory interpretation to say that an agency could conduct a closed session on a personnel [or student] matter to protect the reputation of the person [student] under discussion and then require that minutes be taken in the closed session and be made available for public inspection.”  Id.  Accordingly, this office concluded that when a closed session authorized under KRS 61.810(1) is held, “minutes of the closed session should be made but the board, in its discretion, may require the minutes to be sealed and withheld from public inspection.”  Id., pp. 1-2.

        Such minutes, the Attorney General continued, “will not be part of the regular minutes of the meeting required by KRS 160.270(2).”  Id., p. 2. Mr. Story did not question whether minutes of the closed session itself were required. However, with regard to “regular minutes” of the open session, this office determined the record “should indicate when a closed session was held and the general purpose of the closed session.”  Id. See also OAG 81-135 (holding that school board could announce that discipline was imposed on a particular student following the closed session during which final action was taken but was not required to do so). The minutes of the Board’s January 8 meeting reflect that a closed session was held under authority of KRS 61.810(1)(f) for a “hearing which may lead to the discipline or expulsion of a student.”  Recording the fact that final action was taken without specifying the name of the student or the specific nature of that action would not undermine the legislative intent behind excluding student disciplinary hearings from KRS 61.815(1)(c).  Nevertheless, under this line of authority the Board cannot be said to have violated KRS 61.835 in choosing to omit such general references from the minutes of its January 8 meeting.                    

       In construing KRS 61.820, and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized that under the Open Meetings Act only two kinds of meeting exist. 92-OMD-1840, p. 3. Regular meetings are governed by KRS 61.820 and special meetings are controlled by KRS 61.823.  “If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed.”  Id. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice.  “Failure to follow all of these provisions constitutes a violation of the Open Meetings Act.”  Id.; 02-OMD-11. In applying this provision, the Kentucky Supreme Court has recognized that “the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good,” and the “express purpose” of the Open Meetings Act is “to maximize notice of public meetings and actions.”  Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997), citing E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990). In Scripps, the Kentucky Court of Appeals likewise recognized that “the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies.”  Id. at 452.

        To promote this goal, the Open Meetings Act establishes precise requirements for public agencies which must be fulfilled prior to conducting any special meeting. Specifically, KRS 61.823(1) provides that “[e]xcept as provided in subsection (5) of this subsection [which is inapplicable], special meetings shall be held in accordance with the provisions of subsections (2), (3), and (4) of this section.”⁴  In filing his second complaint, Mr. Story relied upon KRS 61.823(4)(c), pursuant to which:

As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.

On appeal Mr. Story noted in reference to the Board’s “longstanding practice” of providing multiple copies of the meeting agenda just inside of the “parking lot door to the meeting room” of its “central office” (described as the “back door”of the meeting room at the Board’s central office in 15-OMD-057) that the “back door here is [the] entrance to the Board[‘s] meeting room[.]”⁵  The door is located in the front of the building, he continued, where the main entrance is also located; both face the parking lot and Highway 127.  “This back door is always locked and [the public] cannot enter. The door is only unlocked when there is a Board meeting about to take place.”  Accordingly, Mr. Story maintained that its practice means the public is unable to view the posted notice at least 24 hours before the special meeting per KRS 61.823(4)(c).  

Notwithstanding the Board’s assertion that his April 20 complaint “appears to be nothing more than a suggestion” that 15-OMD-057 “stands for the proposition” that its notice for any special meeting prior to its December 4, 2014 special meeting also violated the Act, Mr. Story was entitled to submit a new complaint(s) per KRS 61.846(1) alleging that a separate violation of KRS 61.823(4)(c) was committed in relation to different special meetings. Our application of the governing law necessarily compels the same result inasmuch as the relevant undisputed facts are identical.  In response to Mr. Story’s complaint regarding this alleged violation, the Board stated only that it lacked “sufficient information” to confirm or deny that a violation was committed on any of the dates when the special meetings in dispute were held (November 11 and 17, 2014, and December 15, 2014). On appeal the Board acknowledged the specific “longstanding practice” challenged previously and found insufficient for compliance with KRS 61.823(4)(c) relative to its December 4, 2014 special meeting.

It stands to reason that if the Board’s “typical practice” admittedly did not, “in all likelihood, ensure that the notice of the December 4 special meeting was ‘readily visible to visitors . . . for the twenty-four hour[ ] period immediately preceding the meeting,’” it was also not readily visible to members of the public for that period in advance of the November 11 and 17, and December 15 meetings. 15-OMD-057, pp. 5-6. Accordingly, the instant appeal presents no basis to depart from the reasoning contained in that decision relative to application of KRS 61.823(4)(c) and here, as before, this office must conclude that in failing to strictly comply with all statutory notice requirements, the Board violated the Open Meetings Act regardless of whether Mr. Story was prejudiced by its omission.

        Either party may appeal this decision by initiating action in the appropriate circuit court per 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.

                                                Jack Conway        

                                                Attorney General

                                                Michelle D. Harrison

                                        Assistant Attorney General

#178

Distributed to:

Donald Story

Paula Key

Charlotte Bernard

Grant R. Chenoweth