Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Bell County Board of Education ("Board") violated the Open Meetings Act during its September 19, 2017, regular meeting by discussing a general personnel matter beyond the narrow scope of KRS 61.810(1)(f) during its closed session. By written complaint directed to Board Chairman Dough Ramsey on November 4, 2017, Gary Smith alleged that "the reason for the executive session cited in the agenda for the September meeting does not support the nature of the discussion in that executive session. " Mr. Smith noted that the agenda omitted the statutory language prohibiting "discussion of general personnel matters in secret. " 1 KRS 61.810(1)(f). According to Mr. Smith, the Superintendent "had the evidence gleaned from her investigation of the matter and she knew that the data presented would not support the 'discipline, dismissal or appointment' of anyone attached to the issue. . . . It seems to me that the situation presented in my [August 23, 2017,] letter is a 'general personnel' issue that should not have been discussed 'in secret. '" To remedy this violation, Mr. Smith proposed that Chairman Ramsey should "in an open meeting of the board, answer the questions previously submitted in my letter of August 23 by presenting the documentation gathered during the superintendent's investigation and state what the next steps are in resolving any improprieties that may have" been committed. 2 "If an apology is due the public," Mr. Smith continued, "it should be given during that same public meeting and recorded in the minutes. "
Having received no response to his November 4 complaint, Mr. Smith initiated this appeal by letter dated November 14, 2017. 3 Upon receiving notification of Mr. Smith's appeal, Shea Dunn Yoakum, Attorney At Law, responded on behalf of the Board to both Log Number 201700475 and the instant appeal, identified as Log Number 201700476. In relevant part, Ms. Yoakum advised that "the board meeting conducted on September 19, 2017 was conducted in accordance with KRS 61.810 and 61.815, both in the open session and the closed session, and there were no inappropriate actions taken by the Board at any time relative thereto."
Attached to Ms. Yoakum's November 27, 2017, appeal response was a copy of her November 20 , 2017, letter to Mr. Smith. Ms. Yoakum first confirmed receipt of Mr. Smith's "undated correspondence." However, the copy of Mr. Smith's letter attached to his appeal, which does not appear to have been altered, is actually dated November 4 , 2017. In addressing Mr. Smith's complaint made per KRS 61.846(1), Ms. Yoakum quoted Item 6 from the agenda for the meeting. Ms. Yoakum asserted that the Board "was well within its authority, pursuant to KRS 61.810(1)(f) when it entered into Executive Session to determine if it was necessary to discipline an employee or more than one (1) employee given the seriousness of the allegations that you asserted." The minutes from the meeting "evidence that the Board reconvened into open session and indicated that no further action was needed. That matter has now been closed." 4
Before addressing the substantive issues presented, this office is compelled to address the apparent procedural violation. Pursuant to KRS 61.846(1), 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. . . ." KRS 61.846(1) "does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period." 03-OMD-116, p. 2. As with KRS 61.880(1), the parallel provision of the Open Records Act, "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029. Ms. Yoakum advised that her office received Mr. Smith's November 4 (a Saturday) complaint on November 15 (a Wednesday). However, the relevant date by which to determine whether a public agency's response is timely under KRS 61.856(1) is the date on which the presiding officer/the agency received the complaint. See 11-OMD-019 (Attorney General "finds no error in the Fiscal Court's apparent practice of seeking [advice of legal] counsel before responding to . . . complaints made under the Open Meetings Act in the interest of efficiency assuming that no delay beyond the statutorily authorized time frame of three business days occurs"); 11-OMD-023. Ms. Yoakum issued a written response to Mr. Smith's complaint within three working days after she received it on November 15. However, the Board offered no explanation as to why it did not issue a written response within three working days of when the Board Chairman received it. 5 Simply put, KRS 61.846(1) requires a public agency to issue a written response within three working days of receiving a complaint. Id. 97-OMD-43; 11-OMD-114. Insofar as the Board failed to issue a written response within three working days per KRS 61.846(1), it committed a procedural violation of the Act.
In addition, the undisputed facts confirm the Board partially complied with KRS 61.815(1)(a) prior to convening the September 19 closed session, but did not satisfy all of the notice requirements codified therein. When viewed in light of existing legal authority, the record also validates Mr. Smith's claim that the Board's discussion exceeded the narrow scope of KRS 61.810(1)(f). Our starting point in analyzing the issues presented is the fundamental proposition codified at KRS 61.800, which provides that "[t]he 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 a public agency in conducting public business during a closed session, the General Assembly created a number of exceptions to this general rule, which are codified at KRS 61.810(1)(a)-(m). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1) which, in relevant part, requires a public agency to satisfy the following requirements before holding a closed session: "(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 [.]" (Emphasis added.) In construing KRS 61.815 , Kentucky's highest courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."
Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (Citing
E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 1990)). Consequently, "the courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id.
Decisions issued by the Attorney General over the years relative to compliance with KRS 61.815(1) are consistent with Ratliff, 955 S.W.2d at 921, in which the Kentucky Supreme Court held that the Board failed to give proper notice during open session of the matters to be discussed in a closed session. Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the Ratliff Court reasoned 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[.]" Id. at 924. Regardless of whether discussion(s) was actually restricted to a subject permissible under KRS 61.810(1)(f), any discussions between the Board members "concerning matters not identified in the open meeting with proper notice [were] a violation of the Open Meetings Act and constitute[d] illegal conduct. Id. at 924 (emphasis added). "[T]he Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed." 00-OMD-64, p. 6; 03-OMD-221; 14-OMD-117.
Here, the minutes of the Board's September 19 meeting only reflect that the Board cited KRS 61.810(1)(f), "the specific provision of KRS 61.810" that purportedly authorized the closed session, and quoted the relevant language of that provision. See note 1. A public agency "complies with the requirements of KRS 61.815(a) and KRS 61.810(1)(f) by announcing in open session, that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, or the discipline, or the dismissal of an employee of the agency, indicating which of these particular actions is contemplated." 99-OMD-49, p. 3; 09-OMD-172. 6 In failing to strictly comply with all of the requirements of KRS 61.815(1)(a) prior to conducting its September 19 closed session, the Board contravened KRS 61.800, Ratliff , and prior decisions of this office, "regardless of whether the discussion was actually restricted to a permissible topic or not." 12-OMD-102, p. 8; 06-OMD-211 (lack of any final action relative to general personnel matters improperly discussed in closed session did not mitigate the violation); 09-OMD-172.
Given this determination, the question becomes whether the discussion held in closed session exceeded the narrow scope of KRS 61.810(1)(f), authorizing public agencies to hold a closed session only for "[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student. . . . This exception shall not be interpreted to permit discussion of general personnel matters in secret [.]" In applying this provision, commonly referred to as the "personnel exception" of the Act, this office has consistently observed that a "public agency's authority to go into a closed session relative to personnel matters is severely restricted. General personnel matters cannot be discussed in a closed session. " See 93-OMD-49, p. 3; OAG 90-125; 00-OMD-113; 10-OMD-100; 12-OMD-102.
The dispositive question here is whether the Board was authorized to have a discussion that may have led to the appointment, discipline, or dismissal of the assistant principal in light of KRS 160.390. In 03-OMD-148, the Attorney General determined that a discussion "regarding the School District's failure to follow the registry requirements of KRS 161.011(10)" was not authorized under KRS 61.810(1)(f). The board of education there argued "that because resolution of this issue in [the complainant's] favor will result in an employee being relieved of extra duties, these discussions might lead to the dismissal of an employee and the appointment of another employee." Id. , p. 6. However, the board acknowledged that, "pursuant to KRS 161.170 and 160.380(2)(a), the decision on this question rests with the superintendent, and that it has 'no authority to make a decision that would . . . terminate [] the extra duty services of . . . [an] employee.'" Id. Similarly, in 99-OMD-94, this office held that a task force charged with certain duties, which did not include resolving questions relating to appointment, discipline, or dismissal of employees under the direct control of the agency that created it, had improperly conducted a closed session discussion of "personnel matters involving individuals who [were] subject to the control and authority of [that agency]." Id. , p. 6, cited in 03-OMD-148; 09-OMD-171 (fiscal court was not authorized to discuss matters which might lead to discipline of jail employees insofar as KRS 71.060 expressly provides that jailer is exclusively responsible for appointment or dismissal of jail personnel) .
Pursuant to KRS 161.390, the superintendent of the Bell County School District "shall be responsible for all personnel actions including hiring, assignments, transfer, dismissal, suspension, reinstatement, promotion, and demotion reporting the actions to the local board." See KRS 161.790(7)("superintendent may suspend the teacher pending final action to terminate the contract . . . "); 161.790(10)(superintendent may, "upon notifying the board and providing written notification to the teacher of the charge may impose other sanctions, including suspension without pay, public reprimand, or private reprimand" ). 7 Compare KRS 161.765(2). In the absence of a statutory exception authorizing the Board to engage in a closed session discussion of the "appointment, discipline, or dismissal" of Assistant Principal Christy Wills, a personnel issue over which the Board "has no apparent authority," this office must conclude, based on the evidence of record, that the Board violated the Act by holding a closed session pursuant to KRS 61.810(1)(f) during its regular meeting on September 19.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Item 6 on the Agenda for the September 19, 2017, regular meeting read as follows:
Consider a motion to enter into Executive Session as allowed under KRS 61810 [sic] under subsection (1)(f): Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student[.]
In contrast to KRS 61.823, the provision that governs special meetings, and which expressly requires the inclusion of an agenda in the posted written notice of such meetings, KRS 61.820 does not require agencies to prepare an agenda for a regular meeting. This office has consequently recognized that 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 recently articulated [in 01-OMD-175]." 01-OMD-181, p. 5 (emphasis added); 01-OMD-175 (recognizing that "[b]ecause no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings"); 08-OMD-212; 11-OMD-132. Because no agenda requirements or limitation on discussions and actions for a regular meeting are statutorily imposed, "public agencies cannot be held to the same high standard in preparing their agendas for these meetings." Id. The Board's non-obligatory agenda cannot be properly characterized as deficient merely because the Board omitted the final sentence of KRS 61.810(1)(f).
2 Mr. Smith included a copy of his August 23, 2017, letter to Superintendent Yvonne Gilliam concerning a "troubling and disconcerting" rumor centering "around an employee of the Bell County Board of Education, the duties of the employee and the amount of pay that employee received during the recently completed school year of 2016-2017." Mr. Smith identified the employee as part-time assistant principal at Bell County High School, Christy Willis, the Superintendent's niece. After posing a series of questions, Mr. Smith suggested, among other things, that Superintendent Gilliam "investigate these issues to determine if there are other overpayments to employees" and then share the results of the investigation during an open meeting of the Board.
3 Mr. Smith simultaneously filed a separate but related Open Records Appeal, identified as Log Number 2001700475.
4 The minutes provided, in relevant part, as follows:
A motion was made by Eulene Brock, seconded by Dean Knuckles, to enter into executive session at approximately 6:23 p.m. as allowed under KRS 61810 [sic] under subsection (1)(f): Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student.
Vote: Unanimous
A motion was made by Dean Knuckles, seconded by Eulene Brock, to reconvene into regular board meeting at approximately 7:12 p.m.
Vote: Unanimous
Chairman Ramsey informed the public that the Board had reviewed the documentation relative to an investigation conducted by the superintendent. The investigation had resulted from a letter from a concerned citizen. After reviewing all related documentation the chairman called for a motion regarding the status of the investigation. Eulene Brock made a motion that the documentation evidences that the investigation should be closed and she so recommended. Dean Knuckles seconded the motion.
Vote: Unanimous
5 Excluding Veterans' Day, November 10, the date on which Ms. Yoakum received the request (presumably because the Chairman forwarded it to her) was November 15, seven working days after it was mailed. The Board did not assert that delivery of the complaint was delayed.
6 A public agency is not required to identify by name the employee(s) (or member(s)) who will be discussed, nor is the agency restricted to discussing one employee at a time. 00-OMD-113, p. 4. However, the public is entitled to know the "'general nature of the discussion,' namely 'either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.'" 97-OMD-110, p. 3; 12-OMD-102; 15-OMD-142.
7 In Fankhauser v. Cobb, 163 S.W.3d 389. 406 (Ky. 2005), the Kentucky Supreme Court held, in relevant part, "that a 'teacher,' at least for the purposes of KRS 161.790, 'mean[s] any person for whom certification is required as a basis for employment in the public schools of the state, with the exception of the superintendent.' [KRS 161.720(1).]" Principals fall within this category, the Court noted, "because they are required to be certified by the Educational Professional Standards Board." Id. See 15-ORD-054.