Request By:
Honorable R. Michael Yates
113 Clinton Street
Hickman, Kentucky 42050
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
You have requested the Attorney General to issue an opinion pursuant to the Open Meetings law, KRS 61.805 et seq. According to you, the school board held a due process hearing regarding the expulsion of a student. This meeting was open, and the student and his counsel were present. The school superintendent represented the school board and the principal who ordered the expulsion participated in the hearing by performing direct examination of the school board's witnesses and cross-examination of the accused student and his witnesses. After this open hearing, the school board utilized KRS 61.810(6) in order to close the meeting for deliberations. The student and his counsel were not present; however, the school superintendent was present.
Specifically you ask whether the presence of the school superintendent during this closed session was proper under Open Meetings law. In order to answer your question, we must first look into the propriety of the closed session.
As a public agency, the school board is subject to the Open Meetings law pursuant to KRS 61.870(2). Any meeting at which a quorum of the members is present is open to the public unless exempted by KRS 61.810.
Herein, the school board utilized KRS 61.810(6) which exempts from open meetings:
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.
The school board heard evidence in an open meeting and used this exemption to close the meeting in order to deliberate. In OAG 83-20 this office held that the State Personnel Board may go into closed session pursuant to KRS 61.810(6) for the purpose of deliberations after receiving evidence in an open hearing. As the situation herein with the school board is analogous, we are of the opinion that the meeting was properly closed.
Now as to your specific questions concerning the propriety of the school superintendent's presence at the closed meeting during the deliberations. If, as you stated, the superintendent represented the school board at the public hearing, the situation is analogous to that found in
Stinson v. State Board of Accountancy, Ky.App., 625 S.W.2d 589, 591 (1981), wherein the Court felt that the presence of the Accountancy Board's attorney during deliberations was improper. The Court stated:
. . . Therefore, while the Board's attorney may be available for answering a question of a statutory or procedural nature, we do not think that his presence during the actual deliberations is necessary and could, in some circumstances, certainly operate to the detriment of one brought before the Board.
However, if the superintendent herein had another reason to be present, such as being recording secretary, then his presence in that capacity would be allowed under Stinson: ". . . we do not believe that Ahler's presence was error. Ahler was the director of the Board and was acting as recording secretary. "
The propriety of the superintendent's presence is therefore dependent on his function to the school board. As Stinson holds that the presence of the board's attorney during closed deliberations is improper while presence of a recording secretary is not, the superintendent who holds both positions must clearly delineate his capacity as one or the other during meetings which have the potential for impropriety.
If the superintendent herein represented the school board in a quasi-attorney role throughout the open session, then it is the opinion of the Attorney General that his presence at the closed session was not in compliance with the Open Meetings law under Stinson. His role as representative or quasi-attorney had already been defined even if he also acted as recording secretary.