Request By:
Melony Leazer
Todd County Standard
P.O. Box 308
Elkton, KY 42220Matthew Perry, Chairman
District 3, Todd County Board of Education
1941 Hammacksville Rd.
Trenton, KY 42286Harold M. Johns
12 Public Square
P.O. Box 746
Elkton, KY 42220-0746Bruce Gray
Interim Superintendent
Todd County Board of Education
804 S. Main Street
Elkton, KY 42220
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Superintendent Screening Committee (screening committee) of the Todd County Board of Education violated provisions of the Open Meetings Act at its November 20, 2006, meeting by failing to follow the formalities of going into closed session and in taking final action in that closed session. For the reasons that follow, we find that the record before us is insufficient to support the claimed violations. We are not empowered to engage in independent fact-finding or to consider information that does not appear in the record, and the conflicting statements in that record preclude us from finding a violation of the Act.
On November 21, 2006, Melony Leazer, Todd County Standard , submitted a complaint to Matt Perry, Chairman and presiding officer, Todd County Board of Education and Harold "Mac" Johns, School Board Attorney, in which she alleged that the screening committee violated the Open Meetings Act. In her complaint she stated:
Specifically, the search committee, defined as a public agency under the Kentucky Open Meetings Act, failed to follow the formalities of going into closed session and reconvening in open session. See KRS 61.815(1) for formalities of going into closed session. Also, the committee reached a "consensus," which basically is final action; however, such an agreement was made in closed session, not authorized under KRS 61.815(1)(c).
As a means of remedying these alleged violation, Ms. Leazer proposed that the screening committee discuss in an open and public session those matters that were discussed at the improperly conducted meeting on November 20, 2006, and that any action taken as a result of the meeting should be declared null and void. In addition, she requested that the Chairman and members of the Todd County Board of Education discuss at the next regular school board meeting, in an open and public session, receiving additional professional development on the Kentucky Open Meetings Act.
In a letter dated November 22, 2006, Harold M. Johns, Board Attorney, responded to Ms. Leazer's complaint. With reference to the allegation that the screening committee failed to comply with the formalities of KRS 61.815(1) in going in to closed session and reconvening the open meeting, Mr. Johns advised, in relevant part:
The undersigned is in receipt of your letter of November 21st. It is my understanding that prior to my arrival the selection committee had gone into closed session. At the conclusion of the meeting, the door was opened, and a motion was made to go back into open session both those motions passed. Mrs. Templeman's Minutes are available.
With regard to your question concerning KRS 61.815[1](c) this group does not take any final action. The screening committee is formed pursuant to KRS 160.352. Pursuant to KRS 160.352(4) prior to appointing a superintendent of schools, the board of education shall consider the recommendation of the screening committee, but is not required to appoint a superintendent from the committee's recommendations. Clearly, the screening committee is not authorized to take final action. The final action to be taken, the appointment of a superintendent of schools is taken by the board of education.
Additionally, local board of education policy 02.1 provides the responsibilities of that screening committee. Among its responsibilities is to report its recommendation to the board. That recommendation is a part of the matters to be considered by the board prior to its appointment of a superintendent. Given it is a component of board consideration, like applications, it would be as confidential as the applications.
Addressing Ms. Leazer's proposed remedy that the Board discuss, at its next regular meeting, receiving additional professional development on the Open Meetings Act, Mr. Johns advised:
You should not await discussion as requested in the third paragraph of your correspondence. It continues to be the position of the undersigned that the screening committee has complied with the Open Meetings Act. And the Open Records Act as it applies herein, and no necessity exists for any discussion at a school board meeting. Further, there will not be any public discussion of the applicants by the screening committee. That would breach the obligation of confidentiality placed upon them by the Board and would be inconsistent with provisions of the Open Meetings Act governing the employment of specific individuals. . . .
On appeal, Ms. Leazer complains that, while the minutes may reflect that the screening committee went into closed session and reconvened into open session, despite her attendance, she was not given an opportunity to observe the formalities of the motion to go into closed session and the committee returning to open session. She further asserted:
Also, I disagree with Johns' response that "this group does not take any final action. " According to the state's open meetings law" 'Action taken' means a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the governmental body," KRS 805(3). Johns told me after the meeting that the committee had reached a consensus on what to recommend to the local school board. However, whether it was entered during open session is unclear because, again, the formalities were not observed.
In a supplemental response provided to this office following commencement of Ms. Leazer's appeal, Mr. Johns addressed issues raised in the appeal. With respect to Ms. Leazer's complaint that she was unable to observe the formalities of the screening committee going into closed session and the committee returning to open session, he advised:
. . . The door was opened when the committee took the vote at or around 4:30 p.m. to go into a closed session. When the committee finished its work in closed session the door was opened and a motion was made to return to regular session. Thereafter, a motion was made to adjourn. Whether or not Ms. Leazer was standing at the door waiting for that action is of no consequence. The undersigned is aware of no condition to return to open session, other than to open the door so that the public can reenter. The fact that the public has not reentered does not change the fact the public had an opportunity to reenter.
Addressing the confidential nature of the screening committee's discussions, Mr. Johns stated:
To simply summarize the matter, the actions of the committee are discussions, which might lead to the appointment of an individual employee and the meeting where those individuals are discussed are thus exempt from the Open Meetings requirements pursuant to KRS 61.810(1)(f). The consensus of the screening committee must be protected from disclosure, prior to final action of the board of education as a part of those discussions which might lead to the appointment of an individual employee. The recommendation made by the screening committee is only a preliminary step in the ultimate employment process and thus that recommendation, if in writing, is exempted by KRS 61.878(1)(j).
Our analysis begins with the fundamental proposition codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided by law shall be strictly construed.
Recognizing that extraordinary circumstances occur which might justify an agency conducting public business during a closed session, the General Assembly has created a number of exceptions to this general rule, which are codified at KRS 61.810(1)(a)-(l). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a)-(d), pursuant to which:
(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
(b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
KRS 61.815 is aimed at promoting the "express purpose" of the Open Meetings Act, namely, "to maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997); see also, 94-OMD-78 (holding that agencies which are not exempt per se from the requirements of the Open Meetings Act must observe these formalities before going into a closed session) ; 95-OMD-92 (holding that KRS 61.815 "clearly require[s] that certain things be done in a regular, open, and public session before the public agency can go into a closed or executive session) ; 99-OMD-146; 01-OMD-227.
Of particular relevance here, the Supreme Court has observed:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. . . . The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session.
Ratliff, supra, at 924 (emphasis added).
In her initial complaint, Ms. Leazer complains that the screening committee failed to follow the formalities of going into closed session and reconvening in open session, as required by KRS 61.815(1). In the response to the complaint, Mr. Johns advised her that it was his understanding that prior to his arrival that the committee had gone into closed session before he got there and at the conclusion of the closed meeting a motion was made to go back into open session, both those motions passed and that the minutes to the meeting were available. In her letter of appeal, Ms. Leazer stated that while the minutes may reflect when the screening committee went into closed session and reconvened into open session, despite her attendance, she was not given an opportunity to observe those formalities. In his supplemental response on this issue, Mr. Johns stated that the door was opened when the committee took the vote to go into closed session and after the conclusion of the closed session, the door was opened and a motion was made to return to regular session. The record before us is insufficient to conclusively resolve this factual dispute. Needless to say, if the screening committee failed to follow the formalities of KRS 61.815(1), its actions violated the Open Meetings Act.
Addressing Ms. Leazer's claim that she was denied the opportunity to observe the formalities, she does not set forth in her complaint to the school board the circumstances surrounding her inability to observe the meeting. Mr. Johns indicated in his supplemental response that the door was open when the committee took the vote at or around 4:30 p.m. to go into a closed session and when the committee finished its work in closed session the door was opened and a motion was made to return to regular session. Here again, insufficient is presented to resolve this complaint.
Finally, in her letter of appeal, Ms. Leazer stated that after the meeting Mr. Johns told her that the screening committee had reached a consensus on what to recommend to the school board, but whether it was entered during open session was unclear as she was unable to observe the formalities. In his supplemental response, Mr. Johns advised that when the committee had finished its work in closed session a motion was made to return to open session and, thereafter, a motion was made to adjourn. Here also, insufficient information is before us to resolve this issue. KRS 61.815(1)(c) specifically states that no final action may be taken in closed session. If the committee, in fact, voted in closed session what its recommendation to the school board would be and did not do so in open session, that action would contravene KRS 61.815(1)(c). If final action is taken, it must be taken in open session and the vote of each member, or his abstention, must be recorded in the minutes. KRS 61.835; 98-OMD-119. To the extent the committee deviated from these requirements, if at all, its actions constituted a violation of the Open Meetings 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 proceeding.