Request By:
Mr. Edward L. Fossett
Director
Legal and Legislative Services
Department of Education
Frankfort, Kentucky 40601
Opinion
Opinion By: [Missing Page]
You have requested an opinion of the Attorney General as to whether a board of education may conduct hearings for the consideration of electing a superintendent of schools in closed session under the Kentucky Open Meetings Law, KRS 61.805-61.850.
Under the Open Meetings Law all meetings of the Board of Education are required to be open to the public unless the subject matter of the meeting is exempted under the provisions of KRS 61.810. One of the subject matter exemptions, designated subsection (6), reads as follows:
"Discussions 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 required, provided that this exception is designed to protect the reputation of individual persons and shall not be interpreted to permit discussion of general personnel matters in secret."
In OAG 77-69, we dealt with a special fact situation where the Superintendent of the Jefferson County Schools was being considered by the Board of Education for renewal of his contract. The Superintendent had, at the request of the Board, prepared a written memorandum outlining in general his plans for future measures in the school district. We were asked to opine as to whether said memorandum was a public record within contemplation of the Open Records Law, KRS 61.870-61.884. In that special fact situation we opined that the communications between the Superintendent and the Board should take place in a public meeting and therefore it was not necessary for us to give an opinion as to the application of the Open Records Law.
OAG 77-69 has not been a good opinion for general application. It has caused confusion as to how a school board may properly interview candidates, discuss comparative qualifications and finally make a selection of a new superintendent. It has been brought to the attention of this office that many school administrators who apply for a particular superintendency desire that their application be considered confidentially to avoid any disruption in their relationship with their current employer. Representatives of the State Department of Education, the Kentucky School Board Association and the Kentucky School Administrators Association have requested this office to reconsider OAG 77-69 and issue a clarifying opinion.
It has been reasonably urged that the appointment of a school superintendent should be considered in the same light as the appointment of any other individual employee of the school district, that the exception of subsection (6) should apply and that school boards be allowed to interview and discuss the appointment in closed session.
It is the desire and intention of the Attorney General to faithfully uphold the legislative intent of the Open Meetings Law. In interpreting the law we have little more than the statute itself to go by. No appellate decision in Kentucky has dealt with this question. In Illinois, where the wording of the statute is similar, it has been held that a school board may go into executive session to discuss a particular personnel question and may take a vote in the executive session provided another vote is taken in an open meeting to effect the final action. Both the Kentucky and Illinois statutes provide that no final action shall be taken in a closed meeting. See