Request By:
Mark White
Scott L. Paul
Timothy Crawford
Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary: Whitley County Board of Education did not violate the Open Records Act in denying a request for a copy of a private reprimand given to former Whitley County High School Principal under KRS 161.790(10), incorporated into the Open Records Act by operation of KRS 61.878(1)(1).
Open Records Decision
Mark White, Editor of the News Journal , initiated this appeal challenging the denial by Whitley County Superintendent Scott L. Paul (Records Custodian for the Whitley County School District and Secretary of the Board of Education) of his February 9, 2015 request for "a copy of any disciplinary action by the district against Whitley County High School Principal Alan Sweet since he became high school principal in 2009." Mr. White acknowledged that Mr. Sweet is currently on administrative leave and the District would consequently not have any documents reflecting the final action of the agency regarding the current investigation. Whitley County School Board Attorney Timothy Crawford responded on behalf of his client by letter dated February 11, 2015, advising Mr. White that "[w]e only have one document which is responsive to this request but, that document, a private reprimand, is shielded and exempt from disclosure by law."
Quoting the language of KRS 61.878(1)(1), Mr. Crawford argued that "[t]he General Assembly has made 'private' reprimands of teachers, as opposed to 'public' reprimands, confidential by statute. KRS 161.790(10)." Mr. Crawford further observed:
Also, the Attorney General has rendered opinions which concluded that when the General Assembly has enacted legislation which provides for private reprimands, as opposed to public reprimands, a public agency may withhold such private reprimands from public disclosure. In 2001 in 01-ORD-139, the Kentucky Board of Examination and Registration of Architects did not have to disclose a private reprimand of an architect because that Board was authorized to issue private reprimands under KRS 323.120(1). In 2008 in 08-ORD-128 (citing 01-ORD-139), the Christian County School District did not have to disclose three private reprimands which were in the file of employees as the Superintendent of that school district was authorized to issue private reprimands under KRS 161.790(10).
Mr. Crawford also confirmed the nonexistence of documents reflecting either final action or the decision to take no action regarding this ongoing investigation. Accordingly, our analysis focuses exclusively on whether the agency violated the Act in denying access to Mr. Sweet's private reprimand.
On appeal Mr. White argued that "[r]eprimands of public employees regarding job-related misconduct are most definitely subject to disclosure and have not generally been exempt from public inspection." Mr. White cited numerous prior decisions by this office in support of this general proposition. He maintained that "KRS 161.790(10) only provides for 'private' reprimands of teachers - not principals or other administrators such as Mr. Sweet." Citing
Hooks v. Smith, 781 S.W.2d 522, 523 (Ky. App. 1989), Mr. White argued that "[d]isciplinary action taken against an administrator is fundamentally different, and the law does not provide for reprimands of administrators. "
Upon receiving notification of Mr. White's appeal from this office, Mr. Crawford first reiterated the Board's original response. Second, Mr. Crawford advised that "even though some records of public employee misconduct may not be shielded and exempt from public disclosure, private reprimands of school teachers are by statute [KRS 161.790(10)] specifically shielded and exempt from disclosure as being private, not public. See, 01-ORD-139 (architect discipline) and 08-ORD-128 (teacher discipline) ." (Original emphasis.) Had the reprimand of Mr. Sweet been public, rather than private as permitted under KRS 161.790 (10), Mr. Crawford acknowledged, the public reprimand would not have been exempt from disclosure.
Third, Mr. Crawford addressed Mr. White's assertion that principals and other school administrators cannot be given a reprimand as only teachers can be given reprimands under KRS 161.790(10). In addressing Mr. White's claim that a school administrator, including a principal, can only be disciplined under the Administrative Demotion Act, codified at KRS 161.765, rather than pursuant to disciplinary and termination procedures codified at KRS 161.790(10), Mr. Crawford argued:
The Administrative Demotion Act (KRS 161.765) is used only to reduce (demote) a school administrator in rank from one position ( e.g ., a principal position) on the district salary schedule to a different position on the district salary schedule ( e.g ., a teacher position) for which a lesser salary is paid. KRS 161.720(9) defines demotion as follows:
Nothing in KRS 161.[765] excludes a principal or an administrator from any of the disciplinary procedures or actions contained in KRS 161.790. Also, a demotion does not necessarily have to be based on disciplinary reasons or for disciplinary "causes." For example, see OAG 78-148 , OAG 79-111 (economic reasons) and OAG 82-135 (budgetary reasons) and Miller v. Board of Education of Hardin County, et al., 610 S.W.2d 935, 937 (Ky. App. 1980).
Mr. Crawford further noted that in 08-ORD-128, no distinction was made between principals, other school administrators and teachers. Differentiating between teachers, principals, and other administrators relative to a superintendent's authority to discipline a school administrator in accordance with KRS 161.790 "could lead to a conclusion that a public school superintendent could never terminate or otherwise discipline a school administrator other than through a demotion. "
Even though Mr. Sweet was an administrator within the meaning of KRS 161.720(8), Mr. Crawford reasoned, "he is still a teacher as defined in the Teachers' Tenure Act in KRS 161.720(1) and is subject to . . . all the teacher disciplinary provisions of KRS 161.790." Quoting the definition of "teacher" codified at KRS 161.720(1), Mr. Crawford maintained that Mr. Sweet's former position as principal does not remove him from the disciplinary procedures found at KRS 161.790. Reiterating that Mr. Sweet was and is a teacher as defined at KRS 161.720(1), and remains subject to all provisions of the teacher disciplinary statute, KRS 161.790, including 161.790(10), Mr. Crawford observed that nothing in Hooks v. Smith "exempts a principal or other school administrator from discipline under KRS 161.790" or specifically from KRS 161.790(10). This office agrees. Inasmuch as the Kentucky Supreme Court has recognized that a "principal" falls within the definition of "teacher" codified at KRS 161.720(1), "at least for the purposes of KRS 161.790," and the only existing responsive document is a "private reprimand" given to Mr. Sweet per KRS 161.790(10), this office affirms the agency's denial of Mr. White's request.
Fankhauser v. Cobb, 163 S.W.3d 389, 406 (Ky. 2005).
"The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing KRS 61.871. In considering the question of access to public records pertaining to public employee misconduct and unfounded accusations of misconduct in different contexts, the courts and this office have consistently recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. " OAG 88-25, p. 3. See
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); see also 95-ORD-47 (complaint against school teacher) ; 02-ORD-231; 07-ORD-226. "The public's right to know when an individual, in whose hands the education and care of Kentucky's children is entrusted, has been disciplined for misconduct overrides virtually any privacy interest that could be articulated on behalf of the teacher. " 08-ORD-128, p. 4. Nevertheless, resolution of this appeal involves a limited exception to this general rule, KRS 161.790(10).
A brief overview of the relevant statutory scheme is necessary. The definitions for "teachers' tenure law" are codified at KRS 161.720. For the purpose of KRS 161.730 to 161.810, "teacher" means "any person for whom certification is required as a basis for employment in the public schools of the state, with the exception of the superintendent. " KRS 161.720(1). "Procedures for demotion of administrative personnel - Appeal" are codified at KRS 161.765, for the purpose of which "administrator" means "a certified employee, below the rank of superintendent, who devotes the majority of his employed time to service as a principal, assistant principal, supervisor, coordinator, director, assistant director, . . . ." under KRS 161.720(8). Under KRS 161.720(9), the terms "demote" or "demotion" for the purpose of KRS 161.765 "shall mean a reduction in rank from one position on the school district salary schedule to a different position on that schedule for which a lower salary is paid." The procedures governing termination of the contract of a teacher are codified at KRS 161.790. However, KRS 161.790(10) provides that "[a]s an alternative to termination of a teacher's contract, the superintendent upon notifying the board and providing written notification to the teacher of the charge may impose other sanctions, including suspension without pay, public reprimand, or private reprimand ." (Emphasis added.) Pursuant to KRS 61.878(1)(l), a public agency is authorized to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
In 08-ORD-128, this office was asked to determine whether the Christian County Public School District violated the Open Records Act in denying a request by the Kentucky New Era for copies of all written reprimands issued to several named teachers during their employment with the District, in addition to all written reprimands issued to any teacher at Martin Luther King Jr. Elementary School and "any teacher/ administrator at Morningside Elementary School or Highland Elementary School who now works at MLK." Our analysis began with a discussion of 95-ORD-47, in which this office recognized that "[a]lthough KRS 161.790[(6)] authorizes a private hearing at the discretion of the teacher charged with misconduct, neither that provision or any other provision of KRS 161.790 permits an agency to withhold records relating to contract termination. Absent a specific confidentiality provision in Chapter 161, the Open Records Act governs." 95-ORD-47, p. 3; 08-ORD-128, p. 5. This office noted that since 95-ORD-47 was rendered, the General Assembly had in fact "enacted 'a specific confidentiality provision in Chapter 161, applicable on those presumably rare occasions where, as an alternative to termination of a teacher's contract, the superintendent elects to 'impose other sanctions, including suspension without pay, public reprimand, or private reprimand [,]'" which, as in this case, brought us within the parameters of KRS 61.878(1)(l). 08-ORD-128, p. 5.
Applying the reasoning of 01-ORD-139 (affirming the denial by the Kentucky Board of Registration and Examination of Architects of a request for a "private reprimand" given to a licensee under KRS 323.120, a specific confidentiality provision), 1 this office concluded in 08-ORD-128 that the District had properly denied access to private reprimands given to three named teachers because the "public's right to know about teacher misconduct and resulting disciplinary action must yield to the legislative prerogative." 08-ORD-128, p. 7. Further, this office found that the District's response was procedurally and substantively deficient "insofar as it did not state a legally sufficient basis for refusing to disclose public reprimands issued to the named employees, any other reprimands issued to teachers at [MLK] Elementary School, or 'any teacher/ administrator at Morningside Elementary School or Highland Elementary School who now works at MLK.'" 08-ORD-128, p. 7. Such records, if they existed, were deemed "subject to public inspection under the authorities cited above." Id. This decision is dispositive as to application of KRS 161.790(10) and the accessibility of a "private reprimand" given to a "teacher. " The question becomes whether KRS 161.790(10) applies to a school administrator, including a principal, a question which goes beyond our narrow scope of review in the context of a dispute arising under the Open Records Act. However, the courts have conclusively resolved this question, and no credible argument can be made that Mr. Sweet's private reprimand was not properly withheld assuming that KRS 161.790(10) was properly invoked.
As the Board correctly noted, this office did not distinguish between "teacher" and "administrator" in resolving the questions presented in 08-ORD-128. However, any doubt as to whether KRS 161.790(10) was intended to encompass both has been resolved in the courts. In Hooks, 782 S.W.2d at 523, the Kentucky Court of Appeals noted that administrative personnel have "responsibilities which are quite different from those of classroom teachers. . . . It is certainly not beyond reason that the legislature would deem it advisable not to give one whose supervisory and policy role is so different the same kind of job protection given to a classroom teacher. " However, the question presented there was "whether the equal protection clause of the fourteenth amendment to the United States Constitution and sections 3 and 59 of the Kentucky Constitution require that the basis for demotion of administrative personnel, now governed by KRS 161.765, be identical in substantive and procedural safeguards to those provided for in KRS 161.790 for the termination of tenured teachers' contracts of employment." Id . The Court of Appeals held, "[i]n short, our statutory scheme does not appear to have created a 'property interest' in a school administrator in continued employment as an administrator, although it does secure the right to certain procedural safeguards." Id. at 523, 524.
Mr. Crawford's position that nothing in Hooks removes a school administrator, including a principal, from application of KRS 161.790 in general, or from 161.790(10) specifically, is well-founded. Indeed, a more recent case by the Kentucky Supreme Court is controlling on the narrow question of whether KRS 161.190(10) applies to a school principal such as Mr. Sweet and validates the agency's position. 2
In
Fankhauser v. Cobb, 163 S.W.3d 389, 391 (Ky. 2005), the Superintendent of the Fayette County Public Schools had instituted termination proceedings against Melinda Cobb ("Cobb"), the principal for Leestown Middle School ("Leestown"), and she challenged her termination before a three-member administrative tribunal convened under KRS 161.790(4), which found that she was guilty of two of six charges alleged. Instead of terminating Cobb, the tribunal reprimanded her and temporarily suspended her without pay. Id . The Fayette County Board of Education appealed that decision, alleging that the tribunal did not have the power to impose lesser sanctions than termination or, in the alternative, that its decision was not supported by substantial evidence. Id. at 391. Cobb filed a cross-appeal, claiming that the tribunal erred in failing to grant a directed verdict and in failing to give her a fair hearing as to one of the charges against her. Id . She argued that all of the evidence presented against her pertained to when she was the principal of Leestown and therefore an administrator; that her status as an administrator meant that she was not a teacher; and that charges under KRS 161.790(1)(a) and (d) require support in the form of "a written record of teacher performance" whereas the only written record pertained to her performance as principal. Id. at 405, 406.
The Kentucky Supreme Court held, in relevant part, "that a 'teacher, ' at least for the purposes of KRS 161.790, 'mean[s] any person for whom certification is required as a basis for employment in the public schools of the state, with the exception of the superintendent. ' [KRS 161.720(1).]" Id. at 406 (footnote omitted). Principals fall within this category, the Court noted, "because they are required to be certified by the Educational Professional Standards Board." Id . In other words, a "principal" is a "teacher" for purposes of KRS 161.790, the statute governing disciplinary procedures for teachers. Applying this holding to the facts presented, Mr. Sweet is/was a "teacher" within the meaning of KRS 61.720(1), i.e ., "for the purpose of KRS 161.730 to 161.810," which necessarily includes for the purpose of KRS 161.790, as the Supreme Court has expressly held. Regardless of whether he also fell within the definition of "administrator" codified at KRS 161.720(8), the disciplinary procedures codified at KRS 161.790, including the alternatives to termination of his employment contract outlined at KRS 161.790(10), therefore applied under this judicial authority. The Superintendent exercised his discretion per KRS 161.790(1) to give Mr. Sweet a "private reprimand" as opposed to a "public reprimand. " Inasmuch as the only existing document responsive to Mr. White's request is a "private reprimand, " use of which "juxtaposed as it is with the term 'public reprimand, ' demonstrates that the General Assembly has explicitly given the [superintendent] the power" to impose sanctions that are not subject to public disclosure, this office affirms the agency's denial of Mr. White's request. 01-ORD-139, p. 2; 08-ORD-128, p. 6.
Either party may appeal this decision by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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 proceeding.
Footnotes
Footnotes
1 In 01-ORD-139, this office found the following argument of the agency persuasive:
By the very nature of the language of the statute it is clear that a private reprimand is not public. "Private" is defined in Webster's New World Dictionary 468 (1990) as "not open to or controlled by the public," "for an individual person," and "secret." If a private reprimand was interpreted as not being confidential, then it would be identical to a public reprimand. Another long standing rule of statutory construction is that every word and clause should be given effect and none rendered meaningless. The General Assembly clearly intended that there be two types of reprimands, one which is public and open to disclosure and one which is confidential. Therefore, if a licensee's [teacher's] disciplinary file contains a private reprimand, it is not public record. To rule otherwise would produce an absurd result and effectively eliminate the term private from KRS 323.120 [KRS 161.790(10)].
Id., p. 2; 08-ORD-128, p. 6. The instant appeal presents no basis to depart from this reasoning.
2 On appeal Mr. Crawford noted that Mr. Sweet has been demoted from his position as principal to classroom teacher "pending various ongoing investigations."