Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Board of Education of the Danville Independent Schools ("Board") violated the Open Meetings Act. The Board entered into closed session at its January 22, 2018 meeting. The minutes for that meeting state that the purpose of the closed session was "for preliminary discussion regarding the Superintendent's Annual Evaluation" pursuant KRS 61.810(1)(k) 1 and KRS 156.557(6)(c). 2 We find that the Board violated KRS 61.815(1)(a) when it failed to give notice in regular open meeting that it would engage in a discussion which might lead to the dismissal of the superintendent. The Board further violated KRS 61.815(1)(a) when it cited KRS 61.810(1)(k) and KRS 156.557(6)(c), but failed to cite KRS 61.810(1)(f) 3 as the exception that would authorize that discussion in a closed session. We further find that the Board violated KRS 61.815(1)(d) when it discussed matters which might lead to the dismissal of the superintendent in closed session without first publicly announcing the matter prior to convening the closed session.
Background
On July 19, 2018, a group of concerned citizens including Dianna Devine (Appellant) submitted an open meetings appeal to this office. The appeal alleged that the Board violated the Open Meetings Act at its January 22 meeting. Appellant describes the alleged violation in the appeal as follows:
The Danville Board of Education met in executive session January 22, 2018. The Board and its attorney claim the executive session was to discuss the superintendent's evaluation per KRS 156.557. The evaluation of the superintendent occurred July 17-- nearly seven months after the closed session. We as concerned citizens believe substantive credible evidence indicates the closed meeting was a discussion of whether to re-employ the superintendent. The decision not to re-employ the superintendent occurred at the next meeting of the board, less than 30 days after the closed session, with some board members reading from prepared statements, addressing their decision of not to renew the contract.
Appellant attached email messages obtained from the Board through open records requests as supporting evidence. Appellant argues that an email message sent on January 5, 2018 by Board Attorney H. Vincent Pennington, III is evidence of the Board's intent to discuss the re-employment issue at the January closed session. Appellant also included copies of responses to that message. The message Mr. Pennington sent to the board members states, in relevant part:
I've recommended to [Board Chairperson Paige Matthews] that we add an executive session item to the 1/22/18 regular school board meeting for preliminary discussions regarding [Superintendent Keith Look's] 2017--2018 evaluation. I envision that the discussion might naturally include discussion about whether Keith's contract will be renewed or not. My thinking is that the executive session will begin with the entire board and Keith meeting together to consider the process for his 2017 -- 2018 evaluation; e.g., will the evaluation be broad in scope or focused on particular items; when will the process begin, etc. After that, we'll ask Keith to leave so that the board members can have a frank discussion about his performance and whether they want to renew his contract or not. If there is a clear majority that wants to renew, or a clear majority that does not want to renew, then we can proceed accordingly.
On June 25, 2018, Appellant submitted a complaint letter to the Board. The Board responded on June 29 by letter written by Mr. Pennington. The Board did not deny that it discussed the non-renewal of Dr. Look's contract during the closed session. Mr. Pennington stated that "[a]s I recall, someone inquired how the 2017 -2018 evaluation process would be affected if the board declared a vacancy or if a vacancy occurred automatically on June 30, 2018, in the event the board took no action at all."
Appellant attached a copy of the official minutes of the February 19, 2018 Board meeting to her appeal. The minutes show that Chairperson Matthews made a motion to declare a vacancy for the position of the superintendent, and the motion passed. Appellant states that individual board members read from prepared statements before the vote. She argues that the pre-written statements are evidence that the Board had already discussed the contract and formed an opinion on declaring a vacancy.
On July 31, 2018, Mr. Pennington submitted a response to this appeal on behalf of the Board. Mr. Pennington states that the Board "reiterates its original response" but he adds arguments on Board's behalf. Mr. Pennington argues that the Board understood that they were required to have all discussions in executive session. He states that "KRS 61.810(1)(k), and KRS 156.557(6)(c), require that all preliminary discussions about a superintendent's annual evaluation occur in executive session; indeed, no open discussion about the evaluation process can occur until the school board is ready to approve the summative evaluation, at the end of the process, pursuant to KRS 156.557(6)(b)." 4
Mr. Pennington also argues that the Board did not intend to complete Dr. Look's evaluation at the January 22 meeting. Mr. Pennington points out that the Board also discussed Dr. Look's contract in open session at the February 19, 2018 regular meeting. He notes that "before the vote to declare a vacancy was taken, each board member spoke in open session to indicate his or her position on the pending motion to declare a vacancy in the superintendent's position as of July 1, 2018."
Analysis
Our analysis begins with the fundamental proposition codified at KRS 61.800:
The 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 "exceptions provided by KRS 61.810 or otherwise provided by law " shall be strictly construed, we must conclude that the exception stated at KRS 156.557(6)(c), and relied upon by the Board, must also be strictly construed. See KRS 61.800.
Because extraordinary circumstances occur which might justify an agency to conduct public business during a closed session, the General Assembly created exceptions to the general policy, which are codified at KRS 61.810(1)(a)-(n). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a)-(d), which states:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(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 these statutes, 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 (Ky. 1997), 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. Adopting language used by the Court of Appeals, the Supreme Court concluded that "'the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny."' Id. at 924. Both the General Assembly and the judiciary have thus demonstrated their commitment to "open government openly arrived at." 00-OMD-113, p. 2 (citation omitted). Accordingly, we shall apply a narrow construction to the exception stated at KRS 156.557(6)(c).
We find that, based on the evidence in the record, the Board engaged in a closed session discussion "which might lead to the appointment, discipline, or dismissal of an individual employee" as contemplated by KRS 61.810(1)(f). First, the email message attached by the Appellant provides evidences that the Board intended to engage in a closed session discussion which might lead to the dismissal of Dr. Look. Mr. Pennington discussed the purpose of the executive session stating that the "board members can have a frank discussion about [Dr. Look's] performance and whether they want to renew his contract or not." The responding email messages from at least two board members acknowledged Mr. Pennington's statement in the affirmative.
The Board does not deny that it engaged in a closed session discussion "which might lead to the appointment, discipline, or dismissal of an individual employee. " The Board does not explicitly deny that non-renewal of Dr. Look's contract was discussed in the closed session in its response to the appeal. The Board did not deny that the matter was discussed in the initial response to the Appellant's complaint. In fact, the initial response indicates that the closed session discussion included questions regarding how the "evaluation process would be affected if the board declared a vacancy. " The email messages exchanged before the meeting, and the lack of a denial from the Board, provide sufficient evidence that the Board engaged in a discussion "which might lead to the appointment, discipline, or dismissal of an individual employee" during the January 22 closed session.
Having found that the Board engaged in an executive session discussion "which might lead to" dismissal of Dr. Look, we find that the Board violated the provisions of KRS 61.815(1)(a). The Act required the Board to give notice of the general nature of the business to be discussed in the closed session and the reason for the closed session before entering the closed session. The Act also required the Board to provide notice for the discussions "which might lead to" dismissal of an employee. The minutes of the January 22 meeting state that the Board entered executive session pursuant to KRS 61.810(1)(k) and KRS 156.557(6)(c) for preliminary discussions regarding the superintendent's annual evaluation. However, the Board violated KRS 61.815(1)(a) when it failed to provide notice that the general nature of the business to be discussed in closed session included the KRS 61.810(1)(f) discussion, and include that discussion as a reason for the closed session.
The Board further violated KRS 61.815(1)(a) when it did not cite KRS 61.810(1)(f) as a provision authorizing the closed session. The Board referenced KRS 156.557(6)(c) as grounds for the executive session, and Mr. Pennington correctly states that the statute required the closed session. However, KRS 156.557(6)(c) only permits discussions in closed session "relating to the evaluation of the superintendent [.]" KRS 61.810(1)(f) is the statutory exception that permits closed session discussions relating to the "appointment, discipline, or dismissal" of an individual employee.
KRS 156.557(6)(c) does not have language similar to that used in KRS 61.810(1)(f) that would permit a discussion "which might lead to the appointment, discipline, or dismissal of" a superintendent. KRS 156.557(6)(c) provides that "[a]ny preliminary discussions relating to the evaluation of the superintendent" shall be made in closed session. However, we cannot infer that the General Assembly intended for the word "evaluation" to permit a discussion relating to an "appointment, discipline, or dismissal." Following the rule of statutory construction codified at KRS 446.080(4), 5 we must construe the word "evaluation" to its common and approved usage. Likewise, we are not at liberty to add or subtract from the legislative enactment or discover meanings not reasonably ascertainable from the language used. See
Beckman v. Bd. of Educ., 873 S.W.2d 575, 577 (Ky. 1994). We find that these two statutes do not overlap, and they must be individually invoked to authorize a closed session.
Mr. Pennington points out that the Board did not conclude its evaluation of Dr. Look at the January 22 meeting, and his evaluation did not take place until the open session discussion in February. However, the exception under KRS 61.810(1)(f) is not limited to discussions that end in dismissal. The exception is more broad, and must be invoked for any discussion which "might lead to" the dismissal of an employee. The Board did not conclude its evaluation of Dr. Look in January, and it may not have finally resolved to dismiss him as superintendent during that closed session. However, the Act still applied to those discussions because they were discussions "which might lead to" dismissal. See KRS 61.810(1)(f). As such, we find that the Board violated KRS 61.815(1)(a) when it relied solely upon KRS 61.810(1)(k) and KRS 156.557(6)(c) as the statutory provisions authorizing the closed session.
In addition, we find that the Board violated KRS 61.815(1)(d) when it discussed matters relating to the dismissal of the superintendent in closed session without first publicly announcing the matter prior to convening the closed session. 6
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.
Footnotes
Footnotes
1 KRS 61.810(1)(k) states: "(1) 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 the following: (k) Meeting which federal or state law specifically require to be conducted in privacy."
2 KRS 156.557(6)(c) states: "Any preliminary discussions relating to the evaluation of the superintendent by the board or between the board and the superintendent prior to the summative evaluation shall be conducted in closed session."
3 KRS 61.810(1)(f) exempts: "(f) Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret."
4 KRS 156.557(6)(b) states: "The summative evaluation of the superintendent shall be in writing, discussed and adopted in an open meeting of the board and reflected in the minutes, and made available to the public upon request."
5 KRS 446.080(4) states: "All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning."
6 The Appellant raises additional issues that cannot be addressed in the context of an open meetings review. Appellant argues that the Board made misleading communications relating to the availability of email messages during the disposition of their open records requests. Appellant also asks that this office find that certain members of the Board should face some disciplinary action. However, we make no finding as to whether the Board or its agents acted in bad faith or mislead the Appellants. Our review is strictly limited to whether the agency violated the provisions of the Open Meetings Act. See KRS 61.846(2).