Opinion
Opinion By: Andy Beshear, Attorney General; Matt James, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Jefferson County Board of Education Superintendent Screening Committee 1 ("Screening Committee") violated the Open Meetings Act in not recording the name of the person it recommended for superintendent in the minutes. We find that the Screening Committee did not violate the Open Meetings Act in not recording the name of the person it recommended for superintendent in the minutes.
Boris Ladwig, staff writer for Insider Louisville, submitted an Open Meetings Complaint to the Screening Committee on February 14, 2018. Ladwig alleged that the Board violated the Open Meetings Act "in its Feb. 8 meeting when it held a vote in public session to make a recommendation to the Jefferson County Board of Education--but failed to disclose to the public whom it was recommending. " 2
The Screening Committee responded to the complaint on February 16, 2018, arguing that "because the Committee has no power to make a binding decision regarding the appointment of a superintendent but only has authority to make a recommendation to the Board, the recommendation of the Committee is only a 'preliminary recommendation' for purposes of KRS 61.878(1)(j)." JCBE further argued that "there is no section of the Open Meetings Act that contains any requirement of what must be contained in a motion or vote taken by . . . a public agency at a public meeting. Instead, KRS 61.835 only requires that minutes contain 'an accurate record of votes and actions at [the] meeting.'"
The Screening Committee attached to its response the minutes from the February 8, 2018 meeting. The minutes indicated that the Screening Committee entered into closed session "as permitted by KRS 61.810(1)(f) . . . , for the purposes of discussions that might lead to the appointment of an individual employee." The minutes reflected that after adjourning the executive session, the chair read a statement that "during the Executive Session, the Committee discussed the recommendation that it wishes to make to the Jefferson County Board of Education regarding the appointment of a Superintendent, as required by KRS 160.352. The committee will take action on the recommendation at this time." The minutes then stated that "a motion was made by Mr. Brady to adopt the recommendation of a candidate for superintendent of JCPS and send it to the Board. The motion was seconded by Ms. Foster, and it was adopted. Mr. McKim did not vote."
Ladwig initiated this appeal, which was received by this office on March 8, 2018. Ladwig argued:
The committee . . . held a secret vote that constituted its final action: a recommendation to the JCPS board as to whom it should choose for superintendent. The board took final action in public session but did not disclose whom it was recommending.
. . . .
. . . The Committee's recommendation was final -- not preliminary -- as the committee disbanded immediately after issuing its recommendation, and my complaint alleged not a violation of the law's open records provisions -- but the open meetings provisions, which grant no public disclosure exemption for preliminary recommendations.
The Screening Committee responded to the appeal on March 12, 2018, stating:
Although Mr. Ladwig's appeal has been submitted under the Open Meetings Act, the provisions of the Kentucky Open Records Act regarding "preliminary recommendations" are relevant to the fact that the Committee did not disclose the name of any individual when it voted on its recommendation . . . .
. . . .
. . . However, even if the Attorney General does not agree with this conclusion, it is clear that the Open Meetings Act does not permit the Attorney General to second-guess the content of a public agency's motion or the content of the minutes of a public agency's meetings.
. . . .
. . . Here, as in 11-OMD-017, . . . the Open Meetings Act does not govern the specificity of the content of a motion or the content of meeting minutes, but simply requires an accurate record of the formal action taken and the votes cast by the members. 3
The Screening Committee argues that its recommendation is preliminary under the Open Records Act, KRS 61.878(1)(j), and therefore is not required to be disclosed under the Open Meetings Act. However, the Open Records Act and Open Meetings Act are separate acts, and while this office has sometimes borrowed standards from one act in interpreting the other, 4 they are analytically distinct. "As this office has often noted, 'the Open Records Act and the Open Meetings Act occasionally work at cross purposes and cannot be harmonized.'" 05-ORD-046 n. 3; see also 10-ORD-103 n. 5. More generally:
The exceptions to open meetings codified at KRS 61.810(1)(a) through (l) do not create independent bases for denying access to public records, and are not engrafted upon the open records exceptions to authorize nondisclosure of nonexempt public records which may properly be discussed in closed session. The converse of this holding is equally true. The exceptions to the Open Records Act, codified at KRS 61.878(1)(a) through (l), do not create independent bases for conducting closed session discussion, and are not engrafted upon the open meetings exceptions.
01-OMD-45 n. 4. Accordingly, whether the recommendation was preliminary under the Open Records Act has no bearing on the application of the Open Meetings Act.
KRS 61.835 provides that "the minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded." "KRS 61.835 requires that the minutes of 'action taken' at every meeting of a public agency set forth an accurate record of votes and actions at such meetings. Additionally, the minutes are not required to show any more than the formal action taken and the votes cast by the meeting members, and the minutes are not required to summarize the discussion or record what any individual member said." 03-OMD-006. "'Anything more than [a record of votes and actions] is a matter of parliamentary procedure and the discretion of the public body.'" Id. "The Attorney General . . . has no power to tell an agency what should or should not be contained in the minutes of a public meeting beyond what is required in the statute." 11-OMD-017. See also 05-OMD-188; OAG 81-387.
In 11-OMD-017, the minutes of the Louisville Metro Council indicated an amendment to a budget ordinance for "'Kentucky Fair Board for Marketing' in the amount of $ 60,000." The appellant alleged that "because the minutes of that meeting 'fail to state that the $ 60,000 allocation was intended to hire Mr. Miller to work to secure an NBA team for Louisville,' . . . the minutes 'do not set forth an accurate record of the vote . . . in violation of KRS 61.835.'" 11-OMD-017. We found that the public agency "complied with the literal terms of KRS 61.835 . . . by accurately recording the vote and resulting action." Id.
In this case, the minutes reflect the formal action taken, adopting the recommendation of a candidate and sending it to the Jefferson County Board of Education, and how the members of the public agency voted. Therefore, they minimally comply with KRS 61.835. Our review of the specificity of an agency's minutes does not extend beyond that point. Further, KRS 160.352(2) provides that "each board of education shall appoint a superintendent after receiving the recommendations of a screening committee." KRS 160.352(2) uses the term "recommendations, " and does not require the Screening Committee to actually nominate a single candidate. The Screening Committee may accordingly evaluate multiple candidates, or no candidates, and make multiple recommendations, which may be quite lengthy. Nothing in the Open Meetings Act requires the minutes of a screening committee to reflect the recommendations in their entirety. The Open Meetings Act only requires that the minutes reflect the formal action taken and the vote. Accordingly, the Screening Committee did not violate the Open Meetings Act in not specifying the name of the candidate it recommended in its minutes.
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 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.
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