Request By:
Mr. Jon L. Fleischaker
Wyatt, Grafton & Sloss
Twenty-Eighth Floor
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General pertaining to the Kentucky Open Meetings Law and the Kentucky Open Records Law. You state that on January 17, 1977, Wanda Nichols, a reporter for your client, the Courier Journal, made a written request to inspect documents presented by E. C. Grayson, Superintendent of the Jefferson County Schools, to the Jefferson County Board of Education during a closed meeting of the Board. You further state:
"It is our understanding that the documents in question were prepared by Mr. Grayson in his capacity as Superintendent and related to his goals for the future development of the school system and operation of the school system. It [sic] was presented to the Board during a meeting closed to the public for the announced purpose of considering personnel matters."
You sent with your letter a copy of letters dated January 20 and 24, 1977 whereby the Jefferson County Public Schools refused the request to inspect the named documents on the grounds that the material directly related to personnel matters and was therefore exempted from inspection under the Open Meetings Law, was a personal record belonging to Mr. Grayson, and is specifically excluded under the Open Records Law, Section 9, Subsection 8.
You are appealing to the Attorney General pursuant to KRS 61.880(2) and are asking that the Attorney General inspect the documents in question and give an opinion as to whether or not they were properly withheld by the School Board. For reasons which will appear below we believe that it is not necessary for the Attorney General to inspect the documents.
It is the opinion of the Attorney General that meetings by a school board for the consideration of the appointment of a superintendent should not be closed to the public under the Open Meetings Law. The claimed exemption reads as follows:
"KRS 61.810. All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by such agency, are declared to be public meetings, open to the public at all times except for the following:
* * *
"(6) Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employe, member or student without restricting that employe's, member's or student's right to a public hearing if requested, 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 76-4 we opined that a school board could not hold a closed meeting when the remaining members of the board were considering the election of a replacement to fill a vacancy on the board created by the resignation of one of the board members because the board would be in effect electing a state officer. The same rationale applies here. The Superintendent is not just an employee of the school district. His appointment and removal from office are regulated by statute. KRS 160.350. He is the executive agent of the Board of Education. KRS 160.370. All appointments, promotions and transfers of principals, supervisors, teachers and other public school employees shall be made only upon the recommendation of the superintendent. KRS 160.380. A superintendent of schools is a state officer.
Commonwealth v. Burnett, 237 Ky. 473, 35 S.W.2d 857 (1931);
Williams v. Louisville and Jefferson County Children's Home, 305 Ky. 124, 204 S.W.2d 490 (1947).
The superintendent is a state officer with considerable authority. He is appointed by a contract for a definite term of office. All of the school statutes of Kentucky contrive to create a strong superintendent. Once he is in office he dominates the control of the school system, having authority not only over the people of his district but over the board which appointed him. We do not believe that the consideration of the reappointment of a superintendent comes under the exception provided by KRS 61.810(6) since no dismissal is involved as the superintendent's contract will expire automatically on June 30. As we said in OAG 76-4, a state officer is being elected and we believe that it is the legislative intent that such matters be transacted in open meetings.
Since we conclude that the meeting in question should never have been closed, it follows that the documents presented by Mr. Grayson in support of his candidacy for reappointment should be made available for public inspection, especially if they relate to goals for the future development of the school system and operation of the school system as you state.
We are sending a copy of this letter to the Jefferson County Board of Education as a means of advising it that it is our opinion that the documents in question should be made available immediately for public inspection.