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What the AG’s report says



Following is the full text of the Kentucky Attorney General’s finding that the Letcher County Board of Education was in violation of the state’s Open Meetings Act. The school board voted Monday night to appeal the decision, which is binding, to Letcher Circuit Court.

13-OMD-086

June 7, 2013

In re: The Mountain Eagle/ Letcher County Board of Education

Summary: Letcher County Board of Education violated the Open Meetings Act by failing to give notice of the nature and purpose of a closed session, and to the extent that it discussed general personnel matters, i.e., abolition of certain positions, during an executive session pursuant to KRS 61.810(1)(f ). Telephonic discussions of what items should appear on a special meeting agenda did not violate the Act, but budget discussions among a quorum of membership would have constituted a violation.

Open Meetings Decision

The question presented in this appeal is whether the Letcher County Board of Education (“the Board”) violated provisions of the Open Meetings Act when, at a May 7, 2013, special meeting, it went into executive session pursuant to KRS 61.810(1)(f ) to discuss personnel matters, and subsequently in closed session discussed the abolition of certain positions. In addition, we must consider whether telephone calls pertaining to what should appear on the agenda for the special meeting amounted to a violation of the Act. For the reasons that follow, we find that the executive session contravened the Act, but the telephone calls did not.

In a complaint to Board Chairman Robert Kiser dated May 9, 2013, Sally Barto of the Whitesburg Mountain Eagle alleged that the Board went into closed session in violation of KRS 61.815(1)(a) at the special meeting on May 7, 2013, claiming to do so “under authorization of KRS 61.810, section (1)(b), (c), and (f ), at 6:38 p.m. for the purpose of discussing litigation, personnel and/or property.” She stated that the only items on the agenda for the special meeting were: a) policy concerning board owned vehicles, b) abolish bus driver trainer position, c) abolish assistant superintendent position, d) abolish elementary/ middle school athletic director and combine those duties with the high school athletic director and e) executive session.

Ms. Barto further alleged that Board members had “had a series of telephone conversations to discuss and decide what items should be added to the agenda for [the] special meeting,” which she argued violated KRS 61.810 through a “series of less than quorum meetings.” As a remedy for the purported violations, she proposed declaring the May 7 special meeting void and scheduling a new meeting.

On May 14, 2013, Mr. Kiser responded in relevant part as follows:

1. Board Chairman, Robert Kiser, and members of the Board deny conducting a series of telephone conversations to discuss and decide what items should be added to the agenda for the special meeting held on May 7, 2013. Furthermore, KRS 61.810(2) specifically states that “Nothing in this subsection shall be construed to prohibit discussions between individual member where the purpose of the discussions is to educate the members on specific issues.”

2. Board Chairman Robert Kiser specifically denies going into executive session without specifically stating the reason and the general nature of the business to be discussed since the record speaks for itself. In the executive session, specific individuals were discussed as authorized by OAG 83-379 and the Board is not required to reveal their names.

Ms. Barto appealed to this office on May 20, 2013. She indicates that “during a special meeting on May 14, the board attorney asked the board members in open session to discuss whether or not a series of telephone conversations took place.” One member, Mendy Boggs, replied that she had spoken to two other members on the phone, separated by a few days, and had left a message on the answering machine of a third member. The sole purpose of these telephone calls, according to Ms. Barto’s account of Ms. Boggs’ statement, was “to discuss what items should be put on the board’s agenda and discussed at the meeting.”

If discussion of the agenda was the sole purpose of the phone calls, then we do not believe they constituted a violation of the Open Meetings Act. The requirement of a public meeting extends to “[a]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.” “Public business” has been defined as “the discussion of the various alternatives to a given issue about which the board has the option to take action.” Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998). We have cited this definition with approval. See, e.g., 12-OMD-048 (Yeoman “synthesizes some twenty-six years of open meetings decisions issued by the Kentucky Attorney General”); 09-OMD-093; 04-OMD-148. Since a mere discussion of what items should appear on the meeting agenda is not a substantive discussion of the issues, it would not constitute a discussion of public business and therefore would not trigger the requirements of KRS 61.810(1). See 00-OMD-171 (city manager contacting commissioners to verify that they did not want him to place an item on the agenda was not discussion of “public business”).

On May 23, 2013, however, Board attorney Darrell Hall submitted a response to Ms. Barto’s appeal. Mr. Hall contends that the telephone conversations were calls placed by an inexperienced, first term board member who was deeply stressed because of the lack of funding for an adequate budget for the upcoming school year. Basically this first term board member was simply attempting to educate herself concerning budget issues which is clearly authorized by KRS 61.810(2) which states “Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.” This first term board member had no prior experience dealing with a budget and how could she understand the issues without consulting with other board members.

Discussion of the Board’s budget is certainly a discussion of public business within the meaning of KRS 61.810(1), which requires a public meeting to be held for that purpose. 99-OMD-77. If it is true that a quorum of Board members discussed the budget in a telephonic “series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency,” then KRS 61.810(2) would have been violated according to its express terms, if the telephonic meetings were “held for the purpose of avoiding the requirements” of KRS 61.810(1).

We have insufficient information to determine either the exact content of these telephone conversations or the intent with which they were made. If discussions by telephone occurred among Board members who collectively constituted a quorum, the substance of which concerned budgetary matters, and if this was done with an intent to avoid the requirements of KRS 61.810(1), then a violation of the Open Meetings Act occurred. If any of these factors was absent, there was no violation.

We turn to the validity of the closed session that occurred at the special meeting on May 7, 2013. There is no dispute that Chairman Kiser stated the Board was going into executive session “under authorization of KRS 61.810, section (1)(b), (c), and (f ), at 6:38 p.m. for the purpose of discussing litigation, personnel and/or property.” Ms. Barto further states as follows: “When the board came out of executive session, with minimal discussion in the regular meeting, the board voted on abolishing three positions: bus driver assistant, assistant superintendent and elementary/middle school athletic director. These are positions and this doesn’t fall under the category of disciplining or dismissing an individual employee. The elimination[s] of positions are general personnel matters. Further, the title of assistant superintendent is one of several titles a specific individual holds. She is also director of maintenance and transportation. By abolishing the assistant superintendent portion of her job, she would receive a reduction in pay, but would not lose her job. She has administrative tenure.”

Mr. Hall argues that the notice given was sufficient to comply with the law and adds: “Specific individuals were discussed in the executive session along with the possibility of dismissal. These individuals could not have been discussed in an open meeting without violating their rights to privacy.”

KRS 61.815(1)(a) requires that prior to a closed session, notice must be given in open session “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.” The subsections of KRS 61.810(1) cited by Mr. Kiser are as follows:

(b) Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency;

(c) Discussions of proposed or pending litigation against or on behalf of the public agency; ….

(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, members, 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.

It is not sufficient to state the nature of the business to be discussed with a one-word label such as “litigation,” “personnel,” or “property.” See, e.g., 03-OMD-221 (“litigation”); 12-OMD-102 (“personnel”). Nor do these labels give an indication of the reason why the closed session is necessary. As this office has long recognized:

The Open Meetings Act . . . 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. In construing KRS 61.805 to 61.850, the Supreme Court observed:

“The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.”

Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1987). With specific reference to KRS 61.815, the Court declared that prior to going into closed session, the public agency “must state the specific exception contained in the statute which it relied upon,” and give “specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting.” Id. at 924. In view of the disparate nature of the twelve exceptions, there can be no bright line test for determining if specific and complete notification has been given. However, consistent with the right of the people to “remain informed so that they retain control over the instruments they have created” (1974 HB 100, Preamble), we believe that the notification must include both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in suffi- ciently specific terms to enable the public to assess the propriety of the agency’s actions.

00-OMD-64 (citation form updated). Merely invoking a single word such as “litigation,” “personnel,” or “property” amounts to less than “agency recitation of language of the exception authorizing the closed session,” and therefore is clearly inadequate to comply with KRS 61.815(1).

Furthermore, it does appear that the Board discussed “general personnel matters in secret” in violation of the restrictions of KRS 61.810(f ), since abolishing positions is a general personnel matter. 08-OMD-113. “Consistent with the rule of strict construction codified at KRS 61.800, [the Attorney General] has narrowly read the terms appointment, discipline, and dismissal to insure that the words are given their ordinary, and not a strained or overly expansive, meaning.” 10- OMD-023 (citing Lynch v. Com., 902 S.W.2d 813, 814 (Ky. 1995)). This office has held that the underlying reason for this “personnel” exception is to protect employees’ interest in their reputations when their personal or professional merits are under consideration for hiring, firing, or discipline.

From the evidence, it appears that the personnel matters at issue concerned the abolishing or combining of positions rather than disciplinary dismissals. Since disciplinary dismissals were apparently not discussed in the closed session on May 7, the exception under KRS 61.810(f ) would not apply. Even if there were disciplinary dismissals considered, however, the Board would have violated the Open Meetings Act to the extent that it held any closed discussions about abolishing or combining positions, as these would have been “general personnel matters” (see 08-OMD-113) and should have been discussed in public. See 00-OMD-113 (city commission went into closed session properly to discuss potential discipline of individuals but illegally exceeded the scope of the exception by discussing a general personnel matter).

In summary, we find that KRS 61.810(1) was violated if, and to the extent that, a quorum of the Board discussed a budgetary matter in a series of less than quorum meetings by telephone. The Board did violate KRS 61.815(1)(a) by holding a closed session without giving sufficient notice of the purpose and reason for it, and committed an additional violation of KRS 61.810(1) if, and to the extent that, it discussed abolishing or combining positions in the closed session.

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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

Jack Conway
Attorney General
James M. Herrick
Assistant Attorney General



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