24-OMD-133
June 5, 2024
In re: Robert Mattheu/Cassidy Elementary School-Based
Decision-Making Council
Summary: The Office lacks jurisdiction to consider a complaint alleging
that the Cassidy Elementary School-Based Decision-Making Council
(“the Council”) violated the Open Meetings Act (“the Act”) because the
complaint was not first submitted to the presiding officer of the public
agency accused of violating the Act.
Open Meetings Decision
On May 14, 2024, Robert Mattheu (“the Appellant”) submitted a complaint to
the Superintendent of the Fayette County Public Schools, claiming the Council
violated the Act at its February 26, 2024, meeting when it conducted two anonymous
votes regarding the removal of a subject from the school curriculum. As a remedy, the
Appellant proposed that the Council “revisit their decision” and “go on the record with
their discussion and vote and . . . properly document the votes in their meeting
minutes.”1 In response, on May 15, 2024, the Superintendent confirmed receipt of the
complaint and stated it would “be addressed.” Subsequently, on May 20, 2024, the
Superintendent stated the “violation was confirmed” and “reconsideration of that
decision was placed on the agenda for the March 25, 2024, meeting.”2 However, the
Appellant states that the minutes for the March 25, 2024, meeting indicate the
Council, with an anonymous vote, decided against revisiting their February 26, 2024,
decision. This appeal followed.
1
The Appellant also proposed that all Fayette County School-Based Decision-Making Councils “be
properly trained in both open meetings and open records law to avoid future violations.”
2
The Superintendent also stated, “[W]e have ensured that all [School-Based Decision-Making
Councils] in Fayette County schools receive proper training on open meetings and open records laws
to prevent future violations.”As an initial matter, the Office must be assured of its jurisdiction before it may
render a decision under KRS 61.846(2). A complainant’s request for the Attorney
General to review an agency’s denial of a complaint submitted under the Act is a
statutory proceeding created by the General Assembly as an act of legislative grace.
As such, a complainant must strictly comply with KRS 61.846 before invoking the
Attorney General’s jurisdiction to review the complaint. See, e.g., 22-OMD-177.
To invoke the Attorney General’s review under KRS 61.846(2), a complainant
“shall begin enforcement” under subsection (1) of the statute. KRS 61.846(1). That
provision requires the complainant to “submit a written complaint to the presiding
officer of the public agency suspected of” violating the Act. Id. Accordingly, to begin
enforcement, the complaint may not be submitted to just any person at “the public
agency suspected” of committing the violation, but to the agency’s “presiding officer”
specifically. In 22-OMD-177, the Office dismissed a complaint alleging the Jefferson
County Public Schools Site Based Decision Making Council had violated the Act
because the complainant failed to submit his complaint to the presiding officer of that
agency. Rather, he submitted his complaint to the Superintendent of the Jefferson
County Public Schools and the school district’s general counsel.
Similarly,
here,
the
complainant
submitted
his
complaint
to
the
Superintendent of the Fayette County Public Schools, not to “the presiding officer” of
the Council. School-based decision-making (“SBDM”) councils are public agencies,
separate and apart from local boards of education. See KRS 160.345(2)(a). The
meetings of SBDM councils “shall be open to the public and all interested persons
may attend. However, the exceptions to open meetings provided in KRS 61.810 shall
apply.” KRS 160.345(2)(e). SBDM councils are comprised of parents, teachers, and
either a principal or school administrator. Id. Further, they are chaired by the school’s
principal or administrator. KRS 160.345(2)(b). Superintendents work with SBDM
councils to prepare and select the school’s curriculum, but superintendents are not
members of SBDM councils. KRS 160.345(2)(g).
The Superintendent of the Fayette County Public Schools was not the
presiding officer of the Council’s February 26 and March 25 meetings at which the
Council allegedly took anonymous votes. Rather, the presiding officer was the
Cassidy Elementary School principal. See KRS 160.345(2)(b). The Appellant did not
provide a copy of a complaint submitted to the presiding officer of the Council.
Accordingly, the Appellant did not comply with KRS 61.846(1) before initiating his
appeal to the Office, and the Office dismisses the appeal.
A party aggrieved by this decision may appeal it by initiating an 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 thataction or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#250
Distributed to:
Robert Mattheu
Andria Jackson
Demetrus Liggins
Alex Garcia