16-OMD-179
August 25, 2016
In re: Gary Smith/Bell County Board of Education
Summary: Insufficient evidence that Bell County Board of Education discussed an improper issue in executive session; however, the Board improperly cited KRS 61.810(1)(f) instead of KRS 61.810(1)(k) as authority for closed discussion of superintendent’s evaluation.
Open Meetings Decision
The question presented in this appeal is whether the Bell County Board of Education violated the Open Meetings Act at its regular meeting on June 21, 2016, by discussing an improper issue in executive session. For the reasons that follow, we find insufficient evidence to establish a violation.
By letter dated July 27, 2016, Gary Smith submitted a written complaint under the Open Meetings Act to Chairman Dean Knuckles, in which he alleged as follows:
Two weeks prior to [the] meeting of the Board, I had sent a letter to you as chairman of the board (with a copy of the letter also being sent to each of the other members and the superintendent) indicating my belief that the educational districts in Bell County are unequal as required by law. … In that letter I requested the issue be placed on the agenda at the next meeting.
At the meeting convened on June 21, I presented my information to the board and the only comment I received from anyone on the panel was a statement from Superintendent Gilliam saying that the educational divisions are based on population not on the number of registered voters. … Board Attorney Yoakum was not yet at the meeting when I offered my presentation ….
Later in the meeting, the agenda shows an executive session was convened to conduct a “discussion that might lead to the appointment, discipline or dismissal of an employee, member or student – Superintendent evaluation – Formative”. Board Attorney Yoakum was present at the meeting by this time. Her role was to facilitate the obtaining of formative data during the executive session and completing the summative evaluation of Superintendent Gilliam in the open session of the meeting.
….
My issue is that upon returning to the regular session and after presenting the summative evaluation of the superintendent, under the heading of “Other Items the Board May Wish to Discuss,” Superintendent Gilliam directed Board Attorney Yoakum to research whether or not the populations of the Bell County Educational Divisions are out of balance as had been suggested by my letter and by my presentation earlier in the meeting. This direction to Attorney Yoakum is documented in the minutes from the meeting.
I suspect this item was discussed with the attorney during the executive session. This action was definitely outside the limits the board placed on that session via the agenda.
As a remedy for the alleged violation, Mr. Smith suggested that the Board note its error and make a plan to avoid future errors.
Board attorney Shea Dunn Yoakum responded to Mr. Smith’s complaint on behalf of the Board on August 2, 2016. Her account of the events in open session essentially agreed with Mr. Smith’s, but did not confirm his suspicion that matters other than the superintendent’s evaluation were discussed in executive session:
After concluding the Summative Superintendent’s Evaluation as set forth on the Board Agenda, the final item on the agenda was Item 12, entitled Other Items Board May Wish to Discuss. At that time, Mrs. Gilliam requested that the Board direct me to investigate your requests relative to the alleged imbalance in population in the school district educational districts and advise the Board of my findings. A Motion was made by Larry Elliott and seconded by Brent Pursifull to direct me to do so.
Whether Mrs. Gilliam made a note during your earlier discussion with the Board under Item 3, while I was not present, I do not know. However, there was no discussion in Executive Session regarding the Board directing me to do anything relative to your request until we entered back into Open Session. I am not sure how you jump to this conclusion simply because the directive was done after Executive Session, under the remaining Agenda Item, Other Items Board May Wish to Discuss. As you so dutifully noted in your correspondence, I was not present when you made your request and came to the meeting late. Obviously, the Superintendent and the Board would want me to be present in order to take a directive from the Board relative to something that they need me to research and/or investigate.
(Emphasis added.)
KRS 61.810(1) requires all meetings of a quorum of the members of a public agency “at which any public business is discussed or at which any action is taken by the agency” to be open to the public, except where an enumerated exception applies. Subsection (1)(k) authorizes closed sessions for “[m]eetings which federal or state law specifically require to be conducted in privacy.” Such a requirement is contained in KRS 156.557(6), as amended in 2010, for evaluations of school superintendents:
(a) Each superintendent shall be evaluated according to a policy and procedures developed by the local board of education and approved by the department.
(b) The summative evaluation of the superintendent shall be in writing, discussed and adopted in an open meeting of the board and reflected in the minutes, and made available to the public upon request.
(c) Any preliminary discussions relating to the evaluation of the superintendent by the board or between the board and the superintendent prior to the summative evaluation shall be conducted in closed session.
(Emphasis added.) The closed session was therefore authorized by KRS 61.810(1) as to the preliminary discussions related to the superintendent’s evaluation.
Regarding Mr. Smith’s allegation that additional discussion was held in executive session relating to his request about the allocation of educational districts, there is a failure of proof on this issue. Mr. Smith acknowledges that his complaint is based upon a mere suspicion, and in a response to the appeal dated August 11, 2016, Ms. Yoakum flatly denies that any such discussion occurred in the executive session:
As the board attorney, I walked the board members through each of the seven (7) standards relative to the formative evaluation. This portion of the Superintendent’s evaluation was very time consuming and that was the focus during the closed session of this meeting. The Board did not address or take action on other issues during this time.
Affidavits have been submitted from Superintendent Gilliam and the board members, all of whom confirm that the evaluation was the only matter discussed in the closed session.
The Superintendent, in her affidavit, further explains “that it was my intent to request that the Board direct the board attorney to investigate whether there is an imbalance in population in the school district educational divisions immediately after the request was made by Mr. Smith under the public section, Item No. 3 on the board agenda. However, the Vice-Chairman moved quickly on to the next item on the agenda after Mr. Smith concluded, and I neglected to raise the issue at that time.” She therefore addressed the matter under the final agenda item.
We do not find any circumstances that corroborate Mr. Smith’s suspicion, inasmuch as it appears from the record that Ms. Yoakum arrived after the original discussion of Mr. Smith’s concerns and the Board continued to follow the planned agenda, bringing up the topic again with Ms. Yoakum at the appropriate time (“Other Items Board May Wish to Discuss”). The fact that this agenda item occurred after the closed session seems to have been mere coincidence. Therefore, we cannot conclude that the violation alleged by Mr. Smith in fact occurred.
We do, however, find a violation of KRS 61.815(1)(a), which requires that prior to a closed session “[n]otice 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.) As recounted by Ms. Yoakum in her August 2 response to the complaint, the executive session was held “pursuant to KRS 61.810(1)(f) to have discussions that might lead to the appointment, discipline or dismissal of an employee, member or student, and primarily for the purpose of conducting and facilitating the formative section of the Superintendent’s Evaluation, which was indicated on the June 21, 2016 Board Agenda as Item 10.” (Emphasis in original.)
KRS 61.810(1)(f) should not have been invoked as the provision authorizing the closed session. In 08-OMD-165, we ruled that a proper reading of the scope of KRS 61.810(1)(f) did not include discussion of a school superintendent’s performance evaluation, since such a construction impermissibly “‘expanded the scope of the … exception and improperly concealed matters otherwise appropriate to the view of the public.’” 08-OMD-165 (quoting Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997)); accord, 09-OMD-115. The proper subsection to be invoked, as explained above, was KRS 61.810(1)(k). We therefore find that the closed session on June 21, 2016, failed to comply with KRS 61.815(1)(a) in that the Board cited an incorrect exception.
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.
Andy Beshear
Attorney General
James M. Herrick
Assistant Attorney General
#316
Distributed to:
Mr. Gary Smith
Dean Knuckles, Chairman
Yvonne Gilliam, Superintendent
Shea Dunn Yoakum, Esq.