Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Muhlenberg County Board of Education violated the Open Meetings Act by holding discussions and reaching "a consensus" or conducting a straw vote of its members concerning the preferred candidate for superintendent at its May 30, 2017, special meeting. Based on established authority recognizing that "[a] straw vote . . . for the purpose of reaching a general consensus among the members [of a public agency]" does not constitute a violation of the Open Meetings Act as long as "final action is taken in open session and the vote of each member, or his abstention, [is] recorded in the minutes, " 1 and our understanding that the board took final action in open session on June 6, 2017, we find that the board did not violate the Act by conducting discussions of candidates, reaching a consensus, or conducting a straw vote in closed session on May 30.
In a complaint dated June 8, 2017, addressed to Chairperson Stefanie Rager, C. Josh Givens, editor of the Kentucky Leader-News , alleged that the board exceeded the scope of its agenda and unlawfully reached a consensus and/or conducted a vote for superintendent in closed session during its May 30 special meeting, subsequently selecting the same candidate by a 3-2 formal vote in open session at its next meeting one week later. As a remedy for the alleged violations, Mr. Givens proposed that the board undergo remedial training "by the Kentucky School Boards Association or other relevant agency."
On June 14, 2017, attorney Daniel Sherman responded on behalf of the board, denying any violation:
As you are aware in reviewing the hiring of Superintendent the board is allowed to discuss the applicable candidates. You state, however, that if a consensus is reached with the Board (which apparently happened in this matter) then it is equivalent to action, and therefore must be addressed in open session.
As you are also aware, the Muhlenberg County Board of Education spent around $ 5,000 to hire KSBA in assistance with the hiring of a new superintendent. I can assure you that they were assisted at every step along the way, and they were in fact on the phone with KSBA continuing to seek advice on every step?
?
? According to the KSBA a consensus does not equate to an action. As such there is no requirement to announce a decision on the record after a closed session.
Mr. Givens initiated this appeal on June 14, 2017, specifically alleging that "Board member Shelley Lovell verbally polled fellow Board members during the May 30, 2017, closed session, [and] a closed session was held for a purpose which ran counter to the published and notified purpose of the closed session. "
We determined in 12-ORD-143 that a straw vote in closed session concerning the hiring of an employee does not constitute a vote with legal effect, as it does not bind a board member to the inclination or preference expressed at that time. When a formal vote is conducted subsequently in open session, the purpose of the Open Meetings Act is fulfilled. We attach a copy of 12-ORD-143 and adopt its reasoning in support of our conclusion that any "consensus" reached or informal vote taken in closed session did not violate the Act.
We turn to the argument that the board conducted discussions outside the scope of its agenda. KRS 61.823(3) provides that "[d]iscussions and action at [a special] meeting shall be limited to items listed on the agenda in the notice. " The purpose of this provision is to ensure "sufficient specificity in the description of the items to be discussed to ensure fair notice to the public." 01-OMD-175. "We have never held that agenda items must be as detailed as meeting minutes, so as to anticipate all decisions or actions that may be taken on a given subject. Rather, the items need only identify a subject to as to give fair notice of the topic to be discussed or acted upon." 16-OMD-007.
In an e-mail received by Mr. Givens pursuant to KRS 61.823(4), the May 30 special meeting was announced as follows:
May 22, May 23, May 25 and May 30th, 2017, 5:00 PM CDT-The Muhlenberg County Board of Education will be interviewing candidates for the Muhlenberg County Superintendent position. These meetings will be held at the Muhlenberg County Board of Education Central Office, 510 West Main Street, Powderly, KY 42367. These Board of Education meetings will be held in closed session pursuant to KRS 61.810 Section F.
KRS 61.810(1)(f), to which the notice evidently refers, permits a closed session for "[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student...." While Mr. Givens acknowledges that this exception was properly invoked for purposes of conducting interviews for superintendent, he objects to the fact that the board members proceeded to discuss the merits of the candidates in closed session at the May 30 meeting after an individual who had been scheduled for an interview that day withdrew from the process on the evening of May 25.
In 02-OMD-21, we noted that discussing "the comparative qualifications of the competing applicants" for a position has long been recognized as a proper subject for a closed session under KRS 61.810(1)(f). At that time, we cited OAG 77-392, which stated that "the consideration by a board of education of the appointment of a superintendent may be conducted in a closed meeting. Such consideration can include personal interviews with candidates and discussion of the relative merit of the candidates by the board members ." (Emphasis in original.) The question posed here is simply whether, in the process of conducting interviews to select a superintendent, the discussion of the candidates' relative merits is so closely associated with that process that an agenda item for "interviewing candidates" is sufficient to give fair notice to the public that such discussions will occur. We believe that it is.
The fact that the last remaining interview (scheduled for the final meeting date of May 30) did not transpire is not material in this case. If the board could reasonably have been expected to discuss the relative merits of the candidates after some or all of the interviews, it makes no difference that this particular interview was cancelled. The same discussion, which would have taken place after that interview, still occurred at the scheduled meeting; and such discussion, including the "consensus" or straw vote, was no less lawful than it would have been had it immediately followed the final interview. Accordingly, we find no violation of the Open Meetings Act.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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