Request By:
Mr. Gary Bale
Attorney
Office of Legal Services
Department of Education
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
On behalf of the State Board of Education you have requested an official clarification of OAG 81-235 relative to one point, that being whether a public agency, and specifically the State Board of Education, is required by law to keep minutes of its executive sessions.
OAG 81-235 dealt particularly with KRS 160.270(2) and generally with KRS 61.835. The former statute, which applies only to district boards of education provides that when a district board meets its secretary shall be present at the meeting and shall record in a book provided for that purpose all of the official proceedings. That statute does not apply to the State Board of Education or any other deliberative body.
KRS 61.835, a part of the Kentucky Open Meetings Law, applies generally to the meetings of public bodies, including the State Board of Education, and reads as follows:
"The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to the public inspection at reasonable times no later than immediately following the next meeting of the body."
KRS 156.030(5) [as amended by Executive Order of the Governor] provides that the Superintendent of Public Instruction shall select a secretary for the State Board of Education who shall be an employee of the Kentucky State Department of Education and that it shall be the duty of the secretary to handle the Board's correspondence and maintain a permanent record of its proceedings. There is no statute expressly providing that the secretary must be present in a closed session of the State Board of Education.
There is no statute prescribing the necessary contents of the minutes of a public body except the provision of KRS 61.835 that the minutes shall set forth an accurate record of votes and actions at such meetings. Case law has established the rule that a public agency only speaks authoritatively through its minutes.
County Board of Education v. Durham, 198 Ky. 732, 249 S.W. 1028 (1923). The minimum statutory requirement for minutes is, therefore, that they record formal motions made in a meeting and the vote of the members on the motion. Anything more than such a record is a matter of parlimentary procedure and the discretion of the public body.
KRS 446.080 provides that all words and phrases used in the statute shall be construed according to common and approved usage of language. In order to determine the meaning of the word "minutes" as used in KRS 61.835, we have consulted the foremost authority on parlimentary procedure, Roberts' Rules of Order, Newly Revised, published by Scott Foresman and Company, 1970, Section 47, pp. 389-391. Roberts says that minutes should contain mainly a record of what was done at the meeting, not what was said by the members. Roberts makes no distinction as to open meetings and closed or executive sessions but does discuss the situation when a deliberative assembly forms itself into "a committee of the whole" and says that "the proceedings of a committee of the whole should not be entered in the minutes, but the fact that the assembly went into committee of the whole and the committee report should be recorded. " Id., p. 391. We believe that when a public body goes into closed session as permitted by statute it is, in effect, a committee of the whole and, therefore, the proceedings of the closed session should not be entered in the minutes except to show that the closed session was held and if a formal action was taken in the closed session.
Against the background of the foregoing discussion of the statutes we conclude the following opinion:
(1) The State Board of Education is not required to have its secretary present in a closed session.
(2) Minutes of a meeting, open or closed, are not required to show any more than the formal action taken and the votes cast by the members. It is not required to summarize the discussion or record what any of the members said.
(3) The minutes of the body when a closed session is held should show that the statutory formality provided by KRS 61.815 was observed before going into a closed session, the general subject of the closed session, i.e., personnel matter, litigation, etc., but need not show information which would defeat the purpose of holding a closed session on authorized subject matter.
(4) The deliberative body may exercise its discretion as to whether an additional record should be made of a closed session beyond what we have indicated as the statutory minimum.
(5) No final action of a positive nature should be taken in a closed session but a decision to take no action on a matter under discussion can be made in a closed session. KRS 61.815.