Request By:
Mr. Pete Grigsby, Jr.
Superintendent
Floyd County Schools and
Members of Floyd County
Board of Education
Prestonsburg, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
Certain residents of the Floyd County School District have requested the Attorney General to advise you on the Open Meetings Law as it pertains to holding closed or executive sessions of the Board of Education. The persons making the request refer to themselves as "People for Better Schools" (PBS). The attorney for this group, the Honorable James Park, Jr., has furnished us with a copy of excerpts from the Board minutes. We reach no conclusions as to whether your Board has violated the Kentucky Open Meetings Law, KRS 61.805-61.850, and it is not our function to pass judgment on such matters, but only to advise. However, a reading of the excerpts from the Board minutes indicates to us that there may be some misunderstanding on your part as to the proper reasons and procedure for going into executive session. (The terms "executive session" and "closed session" are used interchangeably and mean the same thing.)
KRS 61.810 provides four reasons why a school board can go into closed session. They are as follows: Subsection (2). Deliberations on the future acquisition or sale of resale property; Subsection (3), Discussions of proposed or pending litigation against or on behalf of the public agency; Subsection (5), Collective bargaining negotiations between public employers and their employees or their representatives; Subsection (6), Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student.
If the purpose of the closed session is to discuss litigation, the Board may go into closed session without ceremony. If the purpose of the closed session is one of the other three subjects for which a closed session is allowed, the Board, before going into closed session, must comply with the provisions of KRS 61.815 except in the case where the purpose is the discussion of the disciplining of a student. The provisions are as follows:
"(1) Notice shall be given in regular open meeting of the general nature of the business to be discussed in the closed session and the reason for the closed session;
(2) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(3) No final actions may be taken at a closed session;
(4) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session. "
We note several instances in the excerpts in the Board minutes where it is stated that the motion was made "that the Board move into executive session to discuss financial and personnel problems in the school system." The repeated use of this phrase in the minutes indicates to us that the Board may have gone into closed session illegally.
KRS 61.810(6) allows a closed session for discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee. This exemption does not apply to discussions of general personnel questions involving all employees or a group of employees. It does not apply to the business of fixing salaries or the financial matters before the school board. "Financial problems" are not a legal subject of a closed session.
If the Board proposes to go into closed session to discuss "a personnel problem", a motion should be made and passed in open session to go into closed session to discuss a personnel problem involving a particular employee or employees. (We believe that it is not necessary to name the employee or employees to be discussed, but each member of the Board is bound by the law to see to it that no other question is brought up in the closed session which does not pertain to an individual employee being considered for appointment, discipline or dismissal). Any member of the Board who knowingly attends a meeting which violates the Open Meetings Law is subject to a fine of not more than $100. KRS 61.991.
If the Board discovers that, either deliberately or inadvertently, it has dealt with a matter in closed session which is not authorized under the law, it should take corrective action by acting on the same matter again in an open meeting. This is necessary because actions taken in violation of the Open Meetings Law are voidable by the circuit court. This means that any person may bring an action in the circuit court and if the court finds that the board violated the law, it may declare the action taken void and of no effect. Until the action taken is declared void by the court it remains an official and a valid action of the board, but the board can demonstrate its good faith in complying with the Open Meetings Law by taking corrective action before the matter is adjudicated.
If you desire any further clarification or advice concerning the Open Meetings Law, please feel free to call or write the Attorney General's Office.