15-OMD-096
June 1, 2015
In re: The Interior Journal/Lincoln County Board of Education
Summary: Lincoln County Board of Education violated KRS 61.815(1)(a) by failing to identify the specific provision of KRS 61.810 authorizing the closed session conducted at its February 12, 2015, regular meeting, as well as the general nature of the business to be discussed in the closed session, and the reason for the closed session. Board’s belated invocation of KRS 61.810(1)(f) was legally deficient because matters discussed in closed session did not relate to “the appointment, discipline, or dismissal, of an individual employee, member, or student.”
Open Meetings Decision
The question presented in this appeal is whether the Lincoln County Board of Education violated provisions of the Open Meetings Act in denying Ben Kleppinger’s February 17, 2015, complaint. Mr. Kleppinger, who is editor of The Interior Journal, addressed his complaint to Board Chairman Tom Blankenship. In it, he alleged that the Board conducted an unauthorized closed session in contravention of KRS 61.810(1) at its February 12, 2015, meeting. Additionally, he alleged that the Board failed to adhere to the requirements for going into closed session, found at KRS 61.815(1)(a), by identifying the specific provision of KRS 61.810 authorizing the closed session, the general nature of the business to be discussed in the closed session, and the reason for the closed session.1
The Board denied these allegations in a February 20, 2015, response asserting:
Pursuant to KRS 160.350 the Board is to appoint a superintendent. As you are aware the current superintendent’s contract will be expiring. Therefore, the board placed an item on the agenda to discuss this in executive session. KRS 61.810(1)(f) allows an exception for discussions for “appointment” of an employee. However, 12-OMD-145, states an opinion in contrast to KRS 160.350 and KRS 61.810(1)(f), and out of an abundance of caution based on a broad reading of the said OMD, no discussions regarding and no action was taken regarding the superintendents contract.
“The only topic which was discussed in the executive session,” the Board maintained, “was advice of legal counsel which is privileged.”
In supplemental correspondence directed to this office after Mr. Kleppinger initiated this appeal, the Board amplified on its position:
KRS 61.810 allows for exceptions to open meetings and subsection (1)(f) of that statute allows for an executive or closed session for multiple purposes on [sic] of which is that of the “appointment” of an employee. KRS 160.350 grants a Board of Education the power to “appoint” a superintendent. Therefore the Board of Education scheduled an executive session on the February 12, 2015, regular board meeting for the purposes of discussing an appointment pursuant to the Board’s authority under KRS 160.350.
In the response provided to Ben Kleppinger dated February 20, 2015, it was stated that due to the 12-OMD-145, an Opinion of this office, stated that discussions of regarding the “re-appointment” of a superintendent’s contract should not be held in and executive/closed session. [Sic.] The Board received legal advice regarding this OMD and no discussions were held regarding the superintendents contact. [Sic.] The executive session was closed and the regular meeting was called back into order and no action was taken.
It was the Board’s position that its actions were permissible because “KRS 61.810(1)(f) allows for an exemption to discuss the appointment of an employee.” The Board was informed of 12-OMD-145, which is contradictory to the [cited] statutes, and no discussions were held regarding the superintendent’s contract . . . .” For the reasons set forth below, we find the Board’s position unpersuasive.
KRS 61.815(1)(a) states that before going into closed session, a public agency must give notice “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.” There are thirteen exceptions authorizing a closed session found at KRS 61.810(1)(a) through (m). Of particular relevance here, KRS 61.810(1)(c) authorizes closed session “[d]iscussions of proposed or pending litigation against or on behalf of the public agency.” KRS 61.810(1)(f) authorizes closed session “[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student” but prohibits “discussion of general personnel matters in secret.” There is no exception authorizing a closed session discussion in which the agency’s attorney renders legal advice. In OAG 97-1, the Attorney General expressly opined that “the attorney-client privilege is not a viable exemption to the Open Meetings Act except as attorney-client discussions involve ‘proposed or pending litigation against or on behalf of a public agency.’” OAG 97-1, p. 1 (declaring 96-OMD-91 of “no precedential value”). A copy of OAG 97-1 is enclosed and its reasoning is adopted in full.
The Board maintains that its February 12 closed session was permissible under KRS 61.810(1)(f), authorizing closed session discussions which might lead to the appointment, discipline, or dismissal of an individual employee, members, or student, because the discussion focused on agency counsel’s legal analysis of 12-OMD-145. That open meetings decision, the Board correctly notes, reaffirmed the longstanding principle 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.” 12-OMD-145, p. 3, citing 11-OMD-066 and 94-OMD-63; compare 96-OMD-97. Counsel’s legal analysis of an open meetings decision addressing that issue does not fall within the parameters of KRS 61.810(1)(f). As the Kentucky Supreme Court has observed:
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 hearings 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.
Carter v. Smith, 366 S.W.3d 414, 420 (Ky. 2012).2 The Board’s February 12 closed session to receive “advice of legal counsel” on a 2012 open meetings decision was impermissible absent a showing that the advice related to “strategy, tactics, possible settlement, and other matters pertaining to” actual or threatened litigation. Id.
Mr. Kleppinger also alleges that the Board failed to observe the requirements for conducting a closed session codified at KRS 61.815(1)(a). The Board indicates that it “placed an item on the agenda to discuss this in executive session.” That item, quoted by Mr. Kleppinger in his letter of appeal, read as follows: “Motion to move to executive session to discuss the superintendent’s contract under KRS 61.810.” Mr. Kleppinger indicates that, “when the Board arrived at this agenda item, it voted 4-1 to enter executive session and adjourned to another room for private discussions.” The Board does not dispute his factual narrative.
In 10-OMD-017, this office rejected a public agency’s argument that it adequately discharged its duty under KRS 61.815(1)(a) by referencing a meeting agenda that contained a citation to the statute authorizing a closed session. A copy of that open meetings decision is enclosed and its reasoning adopted in full. There, as here, the agenda did not satisfy the legal requirements of KRS 61.815(1)(a). The record on appeal gives no indication that the Board cited the exception it believed authorized the closed session, described the general nature of the business to be discussed, and identified the reason for the closed session other than by indirect reference to this vague agenda item. Its actions, in this regard, constituted a violation of KRS 61.815(1)(a). To the extent that the matters discussed in closed session were not limited to the matters announced, by indirect reference to the agenda item, prior to convening the closed session, the Board’s discussion also constituted a violation of KRS 61.815(1)(d).3
Either party may appeal this decision 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.
Jack Conway
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#103
Distributed to:
Ben Kleppinger
Tom Blankenship
Jonathan R. Baker
[1] As a means of remedying these violations, Mr. Kleppinger proposed that the Board “draft a document for public disclosure” detailing, inter alia, all topics discussed in closed session, what agreements or disagreements the Board reached regarding these topics, and any other details concerning the closed session.
[2] As this office stated in OAG 97-1, and the Supreme Court in Carter formally recognized, KRS 61.810(1)(c), relating to discussions of proposed or pending litigation against or on behalf of the public agency, “does not apply” any time the public agency has its attorney present, “but is restricted to discussions of strategy, tactics, possible settlement, and other matters pertaining to pending litigation or a substantial threat of litigation conditioned on the occurrence or nonoccurrence of a specific event.” Carter at 419. The Board did not invoke, and could not have successfully invoked, that exception at its February 12 meeting to discuss a prior open meetings decision that was not itself the subject of proposed or pending litigation, for example, discussions of strategy and tactics relating to whether to appeal an adverse open meetings decision involving the agency. See 97-OMD-96 (agency properly conducted a closed session to discuss whether to appeal an open records decision but improperly made the final determination to appeal in the closed session).
[3] As noted, the Board indicated on its agenda that it intended to discuss the superintendent’s contract in closed session, but, in fact, it received legal advice from counsel on 12-OMD-145 in that session.