Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
Gary Smith initiated this Open Meetings Appeal challenging the disposition by the Bell County Board of Education of his August 10, 2014, complaint, submitted to Board Chairman Kenneth Sams per KRS 61.846(1), which alleged that minutes of the Board's March 19, 2013, regular meeting did not comply with KRS 61.835. In his complaint Mr. Smith initially noted that in January 2014 the Education Professional Standards Board (EPSB) admonished Superintendent Yvonne Gilliam for breaching student confidentiality during the February 19, 2013, meeting of the Board. By letter directed to EPSB on November 25, 2013, Superintendent Gilliam acknowledged this error and, in relevant part, advised that during the March 19, 2013, Board meeting, " I addressed my mistake with the Board members . In fact, I went to the Board and openly admitted my mistake and made recommendations to the Board on how to reprimand me for my actions. . . . The Board determined that my public apology and the anxiety that I have experienced as a result of my action was sufficient penalty and chose not to issue a reprimand or invoke further discipline ." (Emphasis added). Quoting a larger excerpt from Superintendent Gilliam's letter, including the quoted language, Mr. Smith asserted that as the italicized phrases indicate, at some point during the March 2014 Board meeting, "a decision was made regarding an admission of guilt on the part of the Superintendent and actions to be taken by the [Board] related to that admission."
Nowhere in either the agenda or the minutes of that meeting, he continued, is any mention of when Superintendent Gilliam "addressed" the Board and "openly admitted" her mistake, or when the Board "determined" or "chose" not to reprimand her. In addition, the minutes also state that no closed session was held, which eliminates the possibility that any decision or choice was made during same. And, even if the subject would have been discussed in a closed session, he correctly noted, the actual decision would have been reached in the open, public session and then documented in the minutes. Based upon the foregoing, Mr. Smith asserted that minutes of the March 19, 2013, meeting and the information contained in the Superintendent's November 25, 2013, letter to EPSB are conflicting, which is "further evidence of incomplete and inaccurate record keeping" by the Board. The Board perpetuated this error, Mr. Smith observed, in approving the "erroneous minutes" from March 19, 2013, during the April 16, 2013, meeting. 1 In order to remedy the alleged violation(s) of KRS 61.835, Mr. Smith made nine different proposals, including that the Board publicly apologize for the alleged violations and discuss the steps necessary to correct the record, create a plan to ensure "that timely, adequate and accurate documentation of the proceedings from all future meetings" be maintained, announce the plan at the next regularly scheduled meeting, implement the plan relative to all future meetings, and review the plan annually.
Board Attorney Shea Dunn Yoakum issued a timely written response to Mr. Smith's complaint per KRS 61.846(1), initially advising that Superintendent Gilliam "addressed the Board regarding the alleged breach of student confidentiality during the section of the board meeting identified on the agenda as the Superintendent's Report." Ms. Yoakum further maintained that, "There was no action taken by the Board, after Superintendent Gilliam advised the Board of her mistake." As the Superintendent's November 25, 2013, letter to EPSB indicated, Ms. Yoakum continued, "'no action was taken by the Board because the Board believed the public apology and anXiety she had undergone was sufficient penalty' and chose not to take further action ." (Emphasis added.) Because the Board did not believe that any violation of the Open Meetings Act was committed relative to its meeting on March 19, 2013, and/or the approval of the minutes during the April 16, 2013, meeting, it declined to implement any of the proposed remedies. Mr. Smith subsequently initiated this appeal, noting that minutes of the March 19, 2013, meeting do not mention either the Superintendent's acknowledgement of her mistake or the recommendations that she offered, nor do the minutes reference her public apology. Mr. Smith further emphasized that minutes of the meeting are silent with regard to how the Board "determined" that her public apology and the anxiety that she experienced as a result of her actions were sufficient penalties and thus chose not to issue a reprimand or invoke further discipline. The "determination" and "choice" of the Board, he argued, "were actions and should have been supported by a recorded motion and vote by the members of the Board." Further, on April 16, 2013, the Board approved the March 19, 2013, minutes which, in turn, rendered the minutes of the April meeting erroneous given the stated omissions.
In response to Mr. Smith's appeal, Ms. Yoakum reiterated that no action was taken by the Board following Superintendent Gilliam's acknowledgement of her mistake. Paraphrasing Superintendent Gilliam's November 25, 2013, letter to EPSB, Ms. Yoakum again observed that the Board believed the public apology and anxiety that she had experienced as a result of her actions were sufficient penalties, "and it chose to take no further action." Ms. Yoakum also cited KRS 61.835 and the reasoning found in 03-OMD-006 (holding that minutes are not required to summarize the discussion or record what any individual member of a public agency said in a meeting under KRS 61.835) in support of the Board's position that the minutes of the March 19, 2013, meeting and the April 19, 2013, meeting "are accurate, correct and proper." Although Superintendent Gilliam and the Board engaged in discussion under the Superintendent's Report regarding the breach of confidentiality issue, "the Board took no formal action with regard to those matters."
Citing the language of KRS 61.805(3), 2 the Board maintained that it "made no collective decision, made no commitment or promise to make a positive or negative decision, nor made any actual vote by [a] majority of its members." The Board further observed that "no member made any motion concerning the matter, and no board member objected to the minutes of the March 19, 2013 meeting when such minutes were discussed and approved at the following board meeting conducted on April 16, 2013." Based upon the following, this office finds that the Board was not statutorily required to record Superintendent Gilliam's public apology or any discussion that followed in the minutes of its March 19, 2013, meeting. Insofar as the Board "chose not to take further action" or impose any discipline regarding her admitted mistake, however, that "determination" was indeed a "negative decision" or "action taken" 3 by the Board and, therefore, should have been documented in the minutes per KRS 61.835.
As indicated, resolution of the instant appeal turns on the application of KRS 61.835, pursuant to which minutes of "action taken" at every meeting (as defined at KRS 61.805(1)) of any public agency (as defined at KRS 61.805(2)), "setting forth an accurate record of votes and actions taken at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." In addressing the requirements of KRS 61.835 relative to ad-hoc committees that were serving a strictly advisory function, the Attorney General determined that minutes must be maintained, even if those minutes reflect only that the public agency convened, approved the minutes of the last meeting, and adjourned. See 00-OMD-96; 95-OMD-64. In other words, KRS 61.835 specifies the "minimal requirements pertaining to the keeping of the minutes of a public agency. . . . If at the meeting in question nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting." 95-OMD-64, p. 4. Such minutes are subject to public inspection. Id.; 14-ORD-055. 4 "While some agencies may by their own regulations require more thorough minutes, the Open Meetings Act requires only what is set forth in KRS 61.835 relative to the minutes. " 95-OMD-64, p. 4; 14-ORD-055.
Early on, the Attorney General construed this provision, which has remained intact since being enacted in 1974, as requiring the minutes of a meeting held by a public agency to reflect only "the formal actions taken and the votes cast by the members," and not requiring the minutes of the meeting "to summarize the discussion or record what any of the members said." OAG 81-387, p. 2; 03-OMD-006. In so holding, this office relied upon the express language of the statute as well as "the foremost authority on parliamentary procedure, Roberts' Rules of Order , Newly Revised, Scott Foresman and Company, § 47, pp. 389-391. [(1970) indicating] that minutes should contain mainly a record of what was done at the meeting, not what was said by the members." Id., p. 1; 03-OMD-006. On that basis, the Attorney General concluded that "anything more than [a record of votes and actions] is a matter of parliamentary procedure and [falls within] the discretion of the public body." Id. Under the mandatory language of KRS 61.835 and this line of authority, the determination of whether to specifically reference Superintendent Gilliam's apology or any discussion that followed in the minutes of its March 19, 2013, meeting was entirely within the discretion of the Board. Accordingly, this office finds that omitting such information did not violate KRS 61.835 whereas omitting the decision not to impose discipline following Superintendent Gilliam's apology, i.e ., the "action taken," from those minutes did.
In her November 25, 2013, letter to EPSB, Superintendent Gilliam advised that she had "made recommendations to the Board on how to reprimand me for my actions. . . . The Board determined that my public apology and the anxiety that I have experienced as a result of my action was sufficient penalty and chose not to issue a reprimand or invoke further discipline. " 5 (Emphasis added.) The Board has not refuted this characterization of the meeting. Rather, the Board has consistently acknowledged that it "chose not to take further action." Upon request by this office, the Board provided a recording of the meeting in order to facilitate a correct resolution of this matter. During the relevant excerpt of the recording, Superintendent Gilliam said that going into executive session was unnecessary. Then she advised that she had prepared a document for each member to sign, which a member of the Board then read aloud. The Superintendent proposed that she be reprimanded with a copy of the signed document being placed in her personnel file for a year. Superintendent Gilliam apologized for the breach committed on February 19, 2013, and maintained that she must be held accountable for the admitted error. Members of the Board verbalized their unwillingness to sign the document she provided, noting that she had reported the mistake to the Office of Education Accountability, which declined to "fill out a report." Someone asked if the Board needed to vote, and the direct response is not audible, but no formal vote was taken. However, the Board's refusal to invoke the proposed discipline was a "negative decision" and constituted the "action taken" by the agency relative to Superintendent Gilliam's admitted mistake during the February 2013 meeting, regardless of whether it was viewed as "formal action" or not.
Superintendent Gilliam and the Board engaged in a discussion of public business 6 - namely, the breach of confidentiality issue, during its March 19, 2013, meeting before determining that implementing any of the recommendations made by Superintendent Gilliam was unnecessary. No mention of this decision is made under "Superintendent's Report" in the minutes of that meeting. This omission violated KRS 61.835. 7 Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
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