Request By:
Regina A. Catlett
Dr. James Kemp
Amealia R. Zachary
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Webster County Board of Education violated the Kentucky Open Meetings Act in holding a series of less than quorum meetings, where the members attending one or more of the meetings collectively constituted a quorum of the members of the agency, for the purpose of avoiding the requirements of KRS 61.810(1). Based upon the undisputed evidence of record, this office finds that the Board committed at least two of the three elements of conduct proscribed at KRS 61.810(2) in having the "Informal Work Session" held on July 24, 2008. In failing to issue a written response within three business days of receiving the complaint, the Board violated KRS 61.846(1). To the extent the Board engaged in discussion of the Code of Student Conduct, or any other "general personnel matter," during the closed session held under authority of KRS 61.810(1)(f) on August 18, 2008, however briefly, the Board impermissibly exceeded the narrow scope of that exception. 1
In a written complaint directed to Superintendent James Kemp via certified mail on September 2, 2008, the Sebree Banner's owner, Regina A. Catlett, challenged the actions of the Webster County Board of Education "at both the August 18, 2008, regular meeting and the August 26, 2008, special called meeting based on" in going into closed session pursuant to "an invalid Kentucky Revised Statute (KRS)." More specifically, Ms. Catlett alleged that the Board "violated state law" in mistakenly listing subsections (c) and (f) of KRS "06.810" on the agenda 2 for the regular meeting rather than KRS 61.810, and then repeating the error on the agenda for the special meeting in citing "(KRS 06.810, f. - Student Hearing)." Based on the individuals present in the closed session held on August 18, Ms. Catlett observed that "one could assume that litigation and personnel were discussed; however, when the meeting returned to open session, a Banner representative asked if the [B]oard had anything to report. He was told they did not." Later, the Board announced that a special meeting would be necessary based on discussions that occurred in the closed session. Because the Board held a special meeting the next week "for student discipline, " Ms. Catlett believed the Board must have "also discussed matters not listed on the agenda. " In addition, Ms. Catlett noted that "the wife of a school employee was allowed in the" closed session, "despite the agenda designating a discussion of 'personnel. '"
At the special meeting held on August 26, Ms. Catlett "questioned the legality of the session based on the incorrect KRS being used." Despite her objection, the Board adjourned to closed session for the purpose of conducting student discipline hearings based on the advice of the Board attorney that "a [misprint] does not indicate that incorrect information was provided concerning the closed session and that as long as the subsection was correct, the closed session would be 'legal.'" Lastly, Ms. Catlett questioned the practice of "stating that informal work sessions will be held at 6:00 p.m. prior to the meetings and then [B]oard members moving from office to office to discuss [B]oard matters 'in secret.'" Acknowledging that a quorum was not present, Ms. Catlett asserted that if the "stated purpose of the 6:00 p.m. state time" is an "informal work session, " it must "be held in an open public forum" under the Open Meetings Act; however, that "was not the case on July 24, when the [B]oard went to your office in small groups to discuss the [D]istrict [C]ode of [C]onduct. At no point in the regular open meeting was the [C]ode of [C]onduct discussed," and when Ms. Catlett "asked if it would be discussed, the [B]oard [C]hair stated the [B]oard members had discussed it before the meeting." As a means of remedying the alleged violations, Ms. Catlett proposed "that the closed sessions and any action taken in connection with those closed sessions be declared null and void and [that] the [B]oard hold meetings that are in compliance with KRS to conduct the business that was brought before them in those session [s]." Having received no response to her complaint, Ms. Catlett initiated this appeal on behalf of the Banner in a letter dated September 10, 2008, but received in this office September 15, 2008, noting that a Board employee signed to acknowledge receipt of her complaint on September 3rd, and she received a return receipt on September 4th.
Upon receiving notification of the Banner's appeal from this office, Board Attorney Amealia R. Zachary acknowledged receipt of the complaint but explained that "the Superintendent was involved in Tribunal and then out of the state on emergency business until September 14." In addressing the propriety of the "informal work session" held on July 24, Ms. Zachary first notes that "[n]o formal list of items to be discussed by the Board" was posted. Neither the Board as a whole, "nor its individual members anticipated taking any action(s) and none was taken." 3 A quorum of the six-member Board is comprised of four members "and James Nance never spoke to more than one (maybe two) members at a time."
Responding to Ms. Catlett's contention regarding the agenda for the August 18 special meeting, the Board acknowledges that the agenda "as posted and distributed contained a typographical error, mistakenly showing the citation for the closed session as KRS 06.810 instead of KRS 61.810. The mistake was openly admitted as a typographical error in the number but the" subsections referenced in the parenthesis indicated the reason for the meeting. Citing 01-OMD-181, Ms. Zachary asserts there was no violation of the Act because of said "typo." Next, Ms. Zachary defends the manner in which the closed session was conducted, arguing that "personnel is a permissible matter" for discussion under KRS 61.810(1)(f). According to Ms. Zachary, "no action of any kind was taken." Citing an early OAG, Ms. Zachary further contends that "any person(s) who a board of education believes can contribute information or advice on the subject matter" being discussed may be invited to attend a closed session. Accordingly, certain "[D]istrict staff members and the teacher's spouse were indeed invited into the closed session" held on August 18. Relying upon OAG 79-516, 4 Ms. Zachary acknowledges "that if a school board proposes to go into closed session to discuss a personnel problem" a motion should be made and passed in open session. . . . To include the name of the specific employee is not required." In her view, the actions of the Board comported with governing law. 5
With regard to the August 26 special meeting agenda, Ms. Zachary emphasizes that the "intent of the hearing was quite clear and the agenda of the meeting was distributed and posted timely." Although the agenda distributed to members of the Board included the correct legal citation, "the copy the Banner received did not." Based on "precedent and practice in Kentucky," Ms. Zachary advised the Board that a "typographical mistake" would not preclude the Board from entering into closed session for the stated purpose. Citing OAG 77-494, Ms. Zachary asserts that boards are permitted "to correct the record and call to conform to the facts, as long as the correction does not alter the action [and/or] violate the intent" of the Act. Having reiterated her previous argument relative to 01-OMD-181, Ms. Zachary also notes that when Ms. Catlett objected, "PRIOR to the [Board] entering the closed session, the proper KRS was cited to the public and the media in open session. " 6 In her view, proper notice was provided.
As a threshold matter, the Board violated the Open Meetings Act from a procedural standpoint insofar as the Board admittedly failed to issue a written response within three business days. More specifically, the procedural requirements to which a public agency must adhere in responding to a complaint are codified at KRS 61.846(1) which provides, in relevant part, as follows:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.
The Board acknowledges receipt of Ms. Catlett's complaint and its failure to issue a written response in a timely fashion, but does not recognize that such inaction constitutes a violation of KRS 61.846(1); instead, the Board argues that a delay was justified until the Superintendent was available. As the Attorney General has consistently recognized, the absence of the official custodian (or the presiding officer) does not justify a delay in providing access to public records (or in responding to complaints); a public agency "cannot ignore, delay, or postpone its statutory requirements under the Open Records Act [or the Open Meetings Act] ." 02-ORD-165, p. 3. If the records custodian [or the presiding officer] is unable to discharge his duties, "the agency is obligated to designate another person to review and handle open records requests [and Open Meetings complaints] in the absence of the regular custodian of the records [or the presiding officer] ." Id.
Turning to the substantive issues on appeal, the Banner alleges a violation of KRS 61.810(2). 7 When construing KRS 61.810(1) 8 and (2), the Kentucky Supreme Court declared that "[t]he Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act." Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998). On this issue, the reasoning contained in 00-OMD-63 (pp. 4-6) and 03-OMD-92 (pp. 4-7) is controlling; a copy of each decision is attached hereto and incorporated by reference. In defending the "informal work session, " the Board relies on the fact that no action was anticipated and none was taken, and the fact that Board Chair James Nance did not speak with a quorum of the members, but only spoke with "one (maybe two) members at a time." This all but confirms that the members collectively constituted a quorum. The Attorney General has long recognized that KRS 61.810(2) "represented an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act. " 94-OMD-106, p. 3. Although "there is no empirical means by which this office can determine the members' intentions," the actions of the Board otherwise fall within the zone of prohibited conduct described at KRS 61.810(2). 00-OMD-63, p. 6; 03-OMD-092.
With regard to Ms. Catlett's argument regarding the sufficiency of the agenda for the August 18 regular meeting, 01-OMD-181 validates the Board's assertion. Unlike KRS 61.823, 9 which expressly requires inclusion of an agenda in the posted notice of such meetings, KRS 61.820 does not require public agencies to prepare an agenda for a regular meeting; accordingly, "if a public agency elects to prepare one, it is not bound to observe the standard of fair notice to the public of particular topics to be discussed or acted upon" that was articulated in 01-OMD-175. 01-OMD-181, p. 5. In the latter decision, this office expressly held "that the description of items to be discussed or acted upon in the non-mandatory agenda for a regular meeting need not be sufficiently specific to ensure fair notice to the public," but admonished that this position should not be construed "to suggest that public agencies may prepare agendas for regular meetings that are consciously misleading or entirely inaccurate." Consistent with this position, the Attorney General finds that the Board's August 18 meeting agenda did not violate the Open Meetings Act. 10 However, the Board cannot be said to have fully complied with KRS 61.823(3), regardless of whether a correct agenda was provided to Board members, insofar as the "typo" was repeated on the mandatory agenda posted for the August 26 special meeting. This erroneous citation on the posted special meeting notice precluded adequate notice to the public, and was, intentionally or unintentionally, misleading.
On the issue of the presence of nonmembers in a closed session, the Attorney General has recognized a limited exception for nonmembers who "can contribute information or advice on the subject matter under discussion," but emphasized that the nonmember " should remain only so long as is necessary to make his [or her] contribution to the discussion ." 01-OMD-181, p. 6, citing OAG 77-560, p. 3 (emphasis added). In questioning the presence of nonmembers during the closed session held on August 18, Ms. Catlett did not specifically address the duration of the nonmembers' stay nor does the record contain any objective proof on this issue. The Board has not attempted to establish that each nonmember in attendance was invited for the purpose of making a permissible contribution. As in 00-OMD-219, "no justification was offered for the presence in a closed session conducted under KRS 61.810(1)(c) of an individual who was not a member of the agency, a lawyer for the agency, or an employee of a lawyer for that agency." Id., p. 4; 01-OMD-181. Because the public agency in 01-OMD-152 "offered no explanation for the presence of nonmembers in a closed session conducted under authority of KRS 61.810(1)(c)," this office found that the agency had improperly "engaged in the practice of selective admission in contravention of the requirements of the Open Meetings Act. " Id., p. 9. Insofar as the Board has failed to offer any explanation for the presence of nonmember (s), this office finds that the nonmember (s)' presence constituted a violation of the Act. When "inviting non-members into a closed session, we believe that the agency has the duty to explain why such persons are invited into the session. " OAG 77-560, p. 2.
The record appears to partially support Ms. Catlett's assertion regarding discussion of the Code. Having denied that discussion of the proposed revisions occurred in closed session, the Board subsequently acknowledges that in closed session "the Board inquired whether a change in the [Code]" might have resulted in a more efficient resolution of the unspecified "personnel problem." To the extent that the Board did, in fact, engage in any discussion of the need for potential revisions, or any discussion beyond that which "might lead to appointment, discipline, or dismissal of an individual employee, member or student," that discussion, however brief, was not authorized by KRS 61.810(1)(f). On this issue, the analysis contained in 00-OMD-113, a copy of which is attached hereto and incorporated by reference, is controlling.
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.
Footnotes
Footnotes
1 Although the Banner also requests a "clarification" of KRS 61.820 and, more specifically, a definition of "regular meetings" for purposes of that provision, this office does not issue advisory opinions regarding application of the Open Meetings Act. Pursuant to KRS 61.846(2), the Attorney General plays a quasi-adjudicative role in resolving such appeals; the resulting decision has the force and effect of law per KRS 61.846(4)(b).
With regard to whether the "specified times and places" are "convenient to the public," the Banner may wish to review 08-OMD-012, which essentially validates the Board's position.
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2 According to Item 10 on the agenda, the authority for the closed session was "(KRS 06.810, c. - pending litigation and f. -personnel) ." Both parties fail to realize that a completely accurate citation would actually be KRS 61.810( 1 )(c) and ( 1 )(f).
3 As Ms. Zachary explains, the Board members "did not arrive promptly at 6:00 [p.m.], but instead arrived at various times during the period before the regular meeting convened. At one point [B]oard [C]hair James Nance and member Tim McCormick spoke together in the [S]uperintendent's office and as other members arrived James Nance spoke to each in the [S]uperintendent's office."
4 In so arguing, Ms. Zachary omits the following language from the quotation regarding the required motion: "to discuss a personnel problem involving a particular employee or employees ." (Original emphasis.) Because a copy of the minutes of the August 18 meeting is not of record, this office is unable to conclusively determine whether the Board fully complied with the procedural requirements of KRS 61.815(1)(a) before going into closed session by not only citing the specific exception, but also providing a description of the general nature of the business to be discussed and the reason for the closed session. Merely referencing a "personnel problem" is not sufficient. On this issue, 07-OMD-029 is controlling; a copy of that decision is attached hereto and incorporated by reference.
5 To clarify, no student hearing was conducted as "to do so with[out] proper notice and without any parent/guardian or student would have violated concept of 'due process.'" We note that the Board defends its actions in relation to the due process rights associated with student hearings. The function of this office under the Open Meetings Act is to issue a written decision, based upon the written record, indicating whether the public agency violated provisions of the Open Meetings Act. KRS 61.846(2). Accordingly, this office makes no finding relative to due process or any other constitutional issues raised or implicated.
6 According to the minutes from the August 26 special meeting, a motion was made and carried by a unanimous (of those present) vote (4-0) "to enter into Closed Session according to KRS 61.815, which meets the requirements for holding Closed Session and the exceptions to Open Meetings, according to KRS 61.810, subsection f., to conduct student discipline hearings."
7 Pursuant toKRS 61.810(2):
Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
8 KRS 61.810(1), the general mandate of the Act, provides:
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for [those circumstances outlined at (1)(a)-(m)].
9 With regard to application of KRS 61.823(3), the analysis contained in 05-OMD-138, a copy of which is attached hereto and incorporated by reference, is controlling.
10 If the Board voluntarily prepares an agenda, the Board should ensure its accuracy to avoid misleading the public. Here, the incorrect citation was apparently a clerical error.