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 Kentucky Board of Education ("Board") violated relevant provisions of the Open Meetings Act during its special meeting on April 17, 2018, specifically the requirements for closed sessions codified at KRS 61.815(1). Kevin Wheatley, WDRB News, directed his written complaint to Board Chairman Milton Seymore in his capacity as presiding officer, pursuant to KRS 61.846(1). Mr. Wheatley first noted that Chair Seymore "entertained a motion to enter executive session, citing KRS 61.810(1)(c). No vote was taken after a motion to that effect was seconded. " When the Board emerged from the closed session, he stated, "it announced an amendment to former Kentucky Education Commissioner Stephen Pruitt's employment contract, which is a personnel matter. KRS 61.810(1)(c), as you stated in your request for a motion, is an exemption that allows [public agencies] to discuss pending litigation." Implicitly relying upon KRS 61.815(1)(a) and (d), Mr. Wheatley alleged that in referencing KRS 61.810(1)(c), rather than KRS 61.810(1)(f), prior to entering the closed session, and in discussing matters that exceeded the parameters of KRS 61.810(1)(c) during the closed session, the Board violated the Open Meetings Act. 1 Mr. Wheatley further alleged the Board violated the Act by holding the closed session without a majority voting to approve the motion, implicitly relying upon KRS 61.815(1)(b). When viewed in light of the mandatory language of KRS 61.815(1), governing case law, and prior decisions by this office, the undisputed facts confirm the Board violated KRS 61.815(1)(a), and therefore necessarily violated KRS 61.815(1)(d), but the facts do not validate the alleged violation of KRS 61.815(1)(b).
To remedy the alleged violations, Mr. Wheatley proposed the Board should acknowledge that it violated the Act during its April 17, 2018, special meeting; void the amendment to Dr. Pruitt's contract and, "if desired, reconvene and adopt this action in a public [Board] meeting"; and release "any notes, recordings or other records generated by those attending the April 17, 2018, executive session. " In a timely response to Mr. Wheatley's complaint, per KRS 61.846(1), Associate Commissioner/General Counsel Kevin Brown, Kentucky Department of Education ("KDE"), responded on behalf of Chair Seymore. Mr. Brown first acknowledged that Chair Seymore referenced KRS 61.810(1)(c), but noted that he also cited the language found in KRS 61.810(1)(f), the correct exception. Although it did not discharge the Board's duty, Mr. Brown observed, the April 17, 2018, meeting agenda, posted on April 16, 2018, "also properly cited KRS 61.810(1)(f) as the basis for the closed session. " 2 Mr. Brown asserted that when viewed in context, Chair Seymore's reference to "discussion which might lead to the appointment and discipline or dismissal of an individual employee made the purpose of the closed session clear because it is well-established that the [Board] only has employment oversight over one position, the Commissioner of Education. See KRS 156.148(2)." Notwithstanding this assertion, the Board acknowledged that Chair Seymore's reference to KRS 61.810(1)(c), as opposed to KRS 61.810(1)(f), constituted a "technical" or "limited" violation; Chair Seymore apologized for the error. 3
Next, Mr. Brown asserted the Board substantially complied with the requirements of KRS 61.815(1)(b). Chair Seymore asked for a motion to enter into closed session, "which was made and seconded. All [Board] members then left the boardroom, without opposition, collectively displaying their approval to meet in closed session. " Mr. Brown cited 12-OMD-102 in support of the Board's position that it did not violate KRS 61.815(1)(b). In 12-OMD-102, the public agency maintained that it "approved [the motion to enter into closed session] , signifying that by rising to leave the meeting chambers." 12-OMD-102, p. 3. This office was unable to determine that a violation of KRS 61.815(1)(b) was committed under the circumstances presented there. Although the Board was unwilling to implement the proposed remedies in their entirety, Mr. Brown indicated that the Board and the KDE "will work together to provide more clarity for the public when the [Board] enters closed session. Further, the new [Board] members will be provided information concerning the Open Meetings Act. " Upon receiving notification of Mr. Wheatley's appeal from this office, KDE Assistant General Counsel Ashley Lant reiterated the Board's initial arguments. Ms. Lant further stated the Board "admittedly did not take a verbal vote before going into closed session on April 17, 2018." She also stated that because KRS 61.815(1)(b) "does not specify that a verbal vote is required," and the Board members "all collectively left the boardroom without objection after a motion was made and seconded, the [Board] does not believe its actions violated KRS 61.815(1)(b)."
Our starting point in analyzing the question presented is the legislative statement of policy codified at KRS 61.800, declaring 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 conducting public business during a closed session, the General Assembly created a number of exceptions to the general rule codified at KRS 61.800, which are identified 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), 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.
In construing KRS 61.815, the Kentucky Supreme Court 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 (Ky. 1997)(citation omitted). Consequently, "the courts of the Commonwealth [and this office] must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id. Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the 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 (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; 17-OMD-266. A public agency complies with the requirements of KRS 61.815(1)(a) and 61.810(1)(f) by announcing, during open session, the general nature of the business to be discussed in closed session (appointment, discipline, or dismissal of an individual employee (s)/member(s)), the specific reason for the closed session (which of these particular actions is contemplated), and which of the exceptions codified at KRS 61.810 is being invoked (KRS 61.810(1)(f)). 12-OMD-102, p. 9. Mr. Wheatley does not dispute the Board's description of the Chair's motion, specifically that Chair Seymore paraphrased the language of KRS 61.810(1)(f), notwithstanding his mistaken reference to KRS 61.810(1)(c). Nevertheless, the record on appeal does not establish that Chair Seymore provided the specific reason for the closed session; at best, he provided the general nature of the business to be discussed but otherwise failed to comply with KRS 61.815(1)(a).
Even if the subject discussion(s) had actually been restricted to a topic permissible under KRS 61.810(1)(f) , i.e. , appointment, discipline, or dismissal of a member or employee, any discussions between the members of the Board "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 . See 06-OMD-211; 08-OMD-040; 14-OMD-091. The Board admittedly cited the wrong statutory exception, thereby violating KRS 61.815(1)(a). See 16-OMD-179 (local board of education violated KRS 61.815(1)(a) by invoking KRS 61.810(1)(f) instead of KRS 61.810(1)(k), the correct exception). Inasmuch as the Board discussed matters "other than those publicly announced prior to convening the closed session, " it necessarily violated KRS 61.815(1)(d) as well. See 12-OMD-040.
With regard to application of KRS 61.810(1)(f), the statutory exception cited and paraphrased on the agenda for the April 17, 2018, special meeting, the analysis contained in 12-OMD-102, a copy of which the Board attached to its appeal response, is controlling. That exception authorizes public agencies to hold a closed session only for "[d]iscussions or hearings which might lead to 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. " By enacting KRS 61.810(1)(f), the General Assembly "specifically intended to close discussions only of these three subjects due to the potential for reputational damage. Closed session discussions of other matters are expressly precluded by KRS 61.810[(1)(f)]." 4 OAG 83-415, p. 2; (holding that public agency improperly relied upon KRS 61.810(1)(f) to conduct a closed session for the purpose of discussing an employee's resignation); 08-OMD-153 and 15-OMD-120 (agencies exceeded the permissible scope of KRS 61.810(1)(f) in discussing a proposed salary increase for the city clerk); 11-OMD-115 (discussion of salary and benefit package associated with new position was impermissible under KRS 61.810(1)(f) , the "personnel exception"). See also 94-OMD-103; 00-OMD-113; 03-OMD-089; 12-OMD-118.
Significantly, this office has previously determined that a public agency exceeded the scope of KRS 61.810(1)(f) in discussing the terms and conditions of a specific individual's continued employment, 94-OMD-63, and recognized that a discussion centered on securing the continued employment of the interim CEO of a hospital district was improper, 11-OMD-066. In the latter decision, this office contrasted 94-OMD-63 with OAG 91-144 (recognizing the propriety of closed session contract negotiations relating to possible appointment of a new employee), and further analyzed how those decisions were reconciled in 96-OMD-97 (affirming university board of regents' closed session contract negotiations with applicant for the position of interim president). More recently, in 15-OMD-008, this office summarized the foregoing line of decisions in holding that KRS 61.810(1)(f) does not authorize closed session discussions of the terms of a current employee's contract. A copy of 15-OMD-008 is enclosed for the parties' reference. Based upon the limited but unrefuted information of record, which indicates only that Commissioner Pruitt's employment contract was discussed and later amended following the closed session at issue, this office concludes that the Board violated the Act in discussing a general personnel matter that exceeded the scope of KRS 61.810(1)(f) during its closed session.
The remaining question is whether the Board violated KRS 61.815(1)(b), pursuant to which, "[c]losed sessions may be held only after a motion is made and carried by a majority vote in open, public session [.]" Both initially and in responding to Mr. Wheatley's appeal, the Board relied upon 12-OMD-102 in support of its position. There, as in this case, the complainant alleged the agency had violated KRS 61.815(1)(b) in failing to require a majority of the members to verbally approve the motion prior to entering into closed session. Responding on behalf of the City Council, the Mayor advised that he "asked for a motion to enter executive session to discuss personnel. Doug Robinson made the motion and Shirley Dodd signaled the second. Council approved, signifying that by rising to leave the meeting chambers ." 12-OMD-102, p. 3 (emphasis added). The Mayor, as presiding officer, subsequently reiterated that a "motion and second were provided. The remaining members signified their approval either by nodding or standing." Id. at p. 4. "In the absence of minutes from the meeting, or any objective proof to refute this account of what happened," the Attorney General had "no basis to question [the Mayor's] veracity or find that a violation [of KRS 61.815(1)(b)] was committed." Id. at p. 3, n. 3.
Similarly, Chair Seymore made a motion during the Board's April 17, 2018, special meeting, and it received a second. The members of the Board subsequently exited the room without objection and went into closed session. The relevant facts are undisputed here. 5 On appeal, the Board correctly noted that KRS 61.815(1)(b) does not specifically require the motion to be carried with each member expressing their approval verbally. The following excerpt from 12-OMD-102 applies with equal force on these facts:
KRS 61.815(1)(b) requires nothing more [than signifying their approval by rising to leave the meeting and entering into closed session without objection] nor does it specify a particular method of signifying approval though express verbal agreement would certainly be preferable in order to avoid exactly this kind of dispute regarding whether a majority vote was achieved .
12-OMD-102, p. 3, n. 3 (emphasis added). Here, Mr. Wheatley does not allege that a majority of the Board did not approve the motion by Chair Seymore nor does the record on appeal contain any evidence to suggest as much. The public was able to observe a majority of the Board signal its approval by rising and leaving.
The relevant statutory language has not changed; KRS 61.815(1)(b) does not specify a particular method of signifying approval. Compare Ky. Const. § 46 (stating "[n]o bill shall become a law unless, on its final passage, it receives the votes of at least two-fifths of the members elected to each House, and a majority of the members voting, the vote to be taken by yeas and nays and entered in the journal[.]") (Emphasis added). "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002) (citation omitted). This office cannot "read a requirement into the statute that does not otherwise exist." 6 03-OMD-006, p. 5; 11-OMD-017.
The publicly available video recording of the Board's April 17, 2018, special meeting is concerning because it reflects that the meeting included new members of the Board and that the Board acted transparently by verbalizing a vote with yeas and nays to elect a new interim chair, Mr. Seymore, immediately preceding the motion to go into closed session. See Webcast of Special Meeting, Kentucky Board of Education--April 17, 2018, available at http://mediaportal.Education.ky.gov/featured/2018/04/special-meeting-Ke… (last visited May 16, 2018). This office stresses that an express verbal agreement is the best practice, in the interest of bothclarity and efficiency. Nevertheless, when viewed in light of 12-OMD-102, as well as relevant case law, the record on appeal does not support a finding that the Board violated KRS 61.815(1)(b) in this instance. See Morgan v. Champion, 150 Ky. 396, 150 S.W. 517, 518 (1912); Lawrence Cnty v. Lawrence Fiscal Court, 191 Ky. 45, 229 S.W. 139, 141 (1921); Bell v. Sampson, 232 Ky. 376, 23 S.W.2d 575, 580 (1930). See also OAG 87-38. Different circumstances or a more detailed record in future appeals may indicate a violation and require this office to exercise its prerogative to depart from precedent in determining whether a public agency has complied with KRS 61.815(1)(b). 7 As such, this office again emphasizes that a public agency should, in the interest of clarity and preserving the agency's record of actions taken, require each member to verbalize their approval of a motion.
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.
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