Who decides what is 'good for the public to know'?

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WHAS-TV reports that the Jefferson County Board of Education conducted a special meeting on Sunday, four hours of which were devoted to a closed-session discussion of an interim superintendent to temporarily fill the soon-to-be vacant position currently held by Donna Hargens, who will officially step down on July 1.Board chairman Chris Brady later confirmed that board members had discussed the “qualifications desired in a new hire,” but he was not at liberty to share those discussions. The report did not identify the legal basis for the closed session.

It’s likely that the board relied on the “personnel” exemption to the open meetings law, which authorizes closed-session discussions “which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student. . .”  but expressly prohibits “discussion of general personnel matters in secret.”

Therefore, if, in fact, the board discussed the “qualifications desired in a new hire” during its closed session, that portion of the board’s discussion was improper as it goes beyond what the open meetings law allows in closed-session discussions as stated above.

The courts have consistently rejected attempts to expand the exemption beyond its narrow scope by agencies seeking to avoid “unwanted or unpleasant public input, interference or scrutiny.”

Fundamentally, the “personnel exemption” exists to protect individual reputational interests. Such interests are not implicated by a discussion of the “qualifications desired in a new hire.”

Guided by these principles, the attorney general in 2000 determined that although an agency can properly discuss the qualifications of individual candidates for appointment in closed session, it cannot discuss “the process by which the most qualified candidates [will be] selected,” because the latter discussions do not implicate reputational interests. (00-OMD-96).

While the Jefferson County school board’s closed-session discussions with candidates about their individual qualifications for the position were proper, any discussions that did not involve the candidates and/or their individual qualifications, but instead involved a general discussion of the “qualifications desired in the new hire,” exceeded the exception’s intended scope.

The gravity of the board’s apparent error and its potential consequences cannot be overstated.

In Carter v. Smith, the Supreme Court affirmed a lower court’s decision to void a contract for future employment between the retiring school superintendent and the Bourbon County Board of Education.

Citing Floyd County Board of Education v. Ratliff, the court recognized that “[t]he board may have certainly preferred to negotiate the details of [the superintendent’s] arranged exit strategy behind closed doors, but ‘the exceptions to the open meetings law are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny.’”

The court invoked the language of the law’s preamble declaring that “[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know.”

The parents, teachers and children served by the Jefferson County Board of Education have an equal or greater interest in knowing what “qualifications [are] desired in a new hire” for an interim or permanent superintendent as the board itself.

It’s not for their servant, the board, “to decide what is good for [them] to know and what is not good for them to know.”

- Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.