Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Russell Primary Site-Based Council violated the Open Meetings Act at its June 4, 2001 meeting when it went into closed session under authority of KRS 61.810(1)(f) to discuss "matters of personnel which might lead to the hiring of employees to fill vacancies [in the ESS program]." For the reasons that follow, and upon the authorities cited, we conclude that the Council did not violate the Act.
On January 14, 2002, Thomas Stone submitted a complaint to Principal Deneen Zimmerman, presiding officer of the Russell Primary School Site-Based Council, in which he alleged that the Council "was wrong when [it] went into closed session on JUNE 4, 2001 to discuss ESS teaching hiring. " 1 (Emphasis in original.) He complained:
The people given ESS assignments were largely council members. No one that did not already work at [Russell Primary School] was being considered for the positions. Since no one could have been appointed this should have been done in open session.
As a means of remedying this alleged violation, Mr. Stone proposed that "the action taken [be] voided with a proper explanation and lawful procedures followed . . . ."
In a response dated January 16, 2002, Ms. Zimmerman denied the allegations contained in Mr. Stone's complaint. She explained:
The Council did go into closed session at the June 4, 2001 meeting for consultation on ESS summer school teaching positions. The council had several applicants and one applicant did not work at Russell Primary School. KRS 61.810 states that an exception to open meetings is: (under section (f)) discussions or hearings which might lead to the appointment of an individual employee is allowable.
In closing, Ms. Zimmerman reminded Mr. Stone that all final hiring decision were made in open session.
In a supplemental response directed to this office following commencement of Mr. Stone's appeal, Russell Independent School District special counsel, James W. Lyon, Jr., elaborated on the Site-Based Council's position. Mr. Lyon commented:
At the meeting in question, the Site Based Council was discussing the hiring of teachers to fill positions in the ESS program. The ESS program is one which provides extra school services, both after school and during the summer, to students who may be in need or who may benefit from additional help over and above that which they receive during the normal school day. The vacancies in these job positions were posted as vacant, and the principal of the school, Ms. Zimmerman, had received applications for the various job positions.
Reiterating that no final action was taken in closed session, he explained that the Council "discuss[ed] the various strengths and weaknesses of all applicants for the job positions.
With reference to prior open meetings decisions of this office, Mr. Lyon observed:
No offer of employment had been made to any of the applicants for these open positions of ESS instructors prior to or at the meeting of the Site Based Council on June 4, 2001, and there was no contract in effect with any of them for the position of ESS instructor at that time. As the Attorney General said in its opinion, 96-OMD-97:
Mr. Stone apparently contends that because all of the applicants except one were already employees (teachers) at Russell Primary School the discussions relative to those applicants were ones to secure the continuance of their employment with the school over the summer, or after school.
Mr. Stone is mistaken in this belief.
The job vacancies for which the teachers at Russell Primary School applied were for separate positions from those which they already held. The teachers were already under contract with the Russell Board of Education for their normal 185 day per year teaching jobs. The positions of ESS instructors were positions of employment over and above the normal teaching positions[.]
Accordingly, Mr. Lyon concluded, the closed session discussion of the comparative qualifications of the various applicants for the ESS positions was permissible under KRS 61.810(1)(f). We agree.
As noted, in 02-OMD-02 Mr. Stone raised a similar challenge to the Russell Primary School Site-Based Council's actions, alleging that the Council improperly conducted a closed session to discuss ESS teacher hiring, but failing to identify the date on which the alleged violation occurred. At pages three and four of that decision, a copy of which is enclosed, this office analyzed the general principles underlying the Open Meetings Act and the rules of statutory construction pertaining thereto. There, as here, the central issue on appeal was the propriety of the Council's reliance on KRS 61.810(1)(f) as the basis for conducting a closed session discussion of teacher hiring. There we found the record on appeal insufficient to support the claimed violation. Here, all pertinent facts are before us and we find, based on Ms. Zimmerman's description of the matters discussed in closed session, that the Council properly relied on KRS 61.810(1)(f).
Mr. Stone chiefly relies on the principle of law established in 94-OMD-63. In that decision the Attorney General held that a closed session discussion of the terms and conditions of an agency employee's continued employment was inappropriate. We distinguished the facts giving rise to that appeal from the issue before us in OAG 91-144, an advisory opinion recognizing the propriety of closed session contract negotiations pertaining to the possible appointment of a new agency employee. These decisions were synthesized in 96-OMD-97. In 96-OMD-97, this office as asked to determine if the Northern Kentucky University Board of Regents properly conducted a closed session discussion relating to the appointment and selection of an interim president. There we observed:
Among the statutorily recognized exceptions to open and public meetings is KRS 61.8101(1)(f) which provides in part that discussion or hearings which may lead to the appointment, discipline, or dismissal of an employee can be conducted in a closed session. The Board was obviously interested in the candidate it was interviewing but there is no evidence that this particular person had actually accepted an offer of employment or that an offer was even extended. Since the Board authorized contract negotiations to be conducted with this person it seems obvious that no final decision had been made concerning his appointment. Most people under these circumstances would not accept an offer without knowing such things as salary or the length of the contract of employment.
In OAG 91-144, this office considered some basic principles of contract law and the applicability of KRS 61.810(6), now KRS 61.810(1)(f), to the discussion of the possible appointment of a person by a public agency. While we will not reiterate those principles of contract law in this decision, we did conclude in OAG 91-144 that the contract offer would most likely be accepted by the person after matters such as salary and length of the contract had been discussed and negotiated.
This office said in 94-OMD-63 that the public agency's reliance upon OAG 91-144 was inappropriate. The 1991 opinion dealt with negotiations pertaining to the possible appointment of a person by a public agency while the 1994 decision involved negotiations with an employee in an attempt to secure the continuance of her employment with the public agency. The latter situation is not included within the exception to an open and public meeting set forth in KRS 61.810(1)(f).
96-OMD-97, p. 2, 3. The Attorney General concluded that in the absence of a contract between the public agency and the applicant, KRS 61.810(1)(f) authorized closed session discussions that might subsequently result in the appointment of the applicant to the position.
We believe that the facts giving rise to this appeal are more closely analogous to the facts in 96-OMD-97 than the facts in 94-OMD-63. The Russell Primary School Site-Based Council clearly establishes that although the applicants for the vacant ESS instructor positions were under contract with the Russell Board of Education "for their normal 185 day per year teaching jobs," the vacant positions were separate from the positions they held, no offer of employment had been made to any of the applicants to fill the vacant positions, and no contracts had been executed relative to the vacant positions. The closed session discussion therefore focused not on securing the employees continued employment by renegotiating the terms and conditions of their existing contracts, but on the comparative qualifications of the competing applicants for the purpose of selecting the best qualified to fill the vacant positions. This is, and has long been, recognized as an appropriate subject for closed session discussion under KS 61.810(1)(f). See, e.g., OAG 77-392 (discussions pertaining to appointment of superintendent, including personal interviews with candidates and discussions of the relative merits of the candidates, may be conducted in closed session. ) The potential for reputational damage, often cited as the rationale for invoking KRS 61.810(1)(f), 2 exists where several individuals apply for employment and some must be eliminated from consideration on the basis of their lesser qualifications. Such was the case when the Council went into closed session to discuss the qualifications of the competing applicants for the position of ESS instructor. It is not for this office to comment on the wisdom of the appointments to these positions which the Council ultimately made in open session. Our role is confined to determining whether the process employed in making these appointments was consistent with the requirements of the Open Meetings Act. Having reviewed the Council's response to Mr. Stone's appeal, we find no violation of the Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Thomas Stone104 Sunset CourtAshland, KY 41101
Deneen ZimmermanRussell Primary School710 Red Devil LaneRussell, KY 41101
James W. Lyon, Jr.Lyon & KendallP.O. Box 675Greenup, KY 41144
Ronnie Back409 Belfont StreetRussell, KY 41169
Footnotes
Footnotes
1 Mr. Stone unsuccessfully challenged the Council's actions in an earlier open meetings appeal. 02-OMD-02. Because he failed to identify the dates of the meetings at which these alleged violations occurred, the minutes of the meetings immediately preceding the hiring of the ESS staff reflected no closed sessions, and Ms. Zimmerman denied that closed sessions took place at these meetings, this office found inadequate proof of the claimed violation.
2 See OAG 83-415.