The April 17, 2018 special meeting of the Kentucky Board of Education that culminated in the resignation of Commissioner Stephen Pruitt was marred by several open meetings violations. It was not an auspicious beginning for the board’s “different direction.”

Some of the violations were indisputable, like the board’s failure to vote on the motion to retire to closed session some ten minutes into the meeting. KRS 61.815(1)(b) clearly states that “[c]losed sessions may be held only after a motion is made and carried by a majority vote in open, public session.” The new chair entertained a motion and second but failed to call for a vote in the open session.

Inexperience? Perhaps. Nerves? Possibly. Inadequate legal guidance? Maybe. But there is no disputing the violation.

Morever, the motion itself was deficient. KRS 61.815(1)(a) states that before a closed session can be conducted  “[n]otice 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.”

Somewhat confusedly, the new chair cited KRS 61.810(1)(c) – relating to “[d]iscussions of proposed or pending litigation against or on behalf of the public agency” -- as the provision “authorizing the closed session” but quoted the provision found at  KRS 61.810(1)(f)  –  relating to “[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.” Whichever of these provisions he meant to invoke, the chairman did not go on to satisfy the requirements of the Open Meetings Act by describing “the general nature of the business to be discussed in closed session” or the “reason for the closed session.”

While in this particular case there was little doubt in anyone’s mind why the closed session had been called, these statutory requirements are not mere formalities and cannot be waived. The chair should have entertained a motion to conduct a closed session, “pursuant to KRS 61.810(1)(f) [specific provision], to discuss the possible dismissal of an employee [general nature of the business to be discussed in closed session] in order to protect the employee’s reputation [reason for the closed session].” His failure to do so was clearly problematic.

In 1997, Kentucky’s highest court declared that the “express purpose of the Open Meetings Act is to maximize notice of public meetings and action,” and that “[t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” With specific reference to adherence to KRS 61.815, the Court observed:

“KRS 61.815 provides 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 during the closed meeting.  The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session.”

Forty-four years of open meetings interpretation and analysis confirms that merely reciting the language of the provision authorizing a closed session does not satisfy this statutory requirement because it does not permit the public to meaningfully assess the propriety of the closed session.

And, in the final analysis, was the board’s April 17 closed session statutorily authorized? Was it, in fact, legal?

In a 2012 case, the Kentucky Supreme Court recognized that “[a] public agency's authority to go into a closed session relative to personnel matters is severely restricted. Under the personnel exception, a public agency may enter closed session only for ‘discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.’ KRS 61.810(1)(f). These three topics are the only personnel matters a public agency may discuss in closed session. Discussions of any other matters are expressly precluded. The statute itself underscores the specific nature of the exception by explicitly stating the exception does not ‘permit discussion of general personnel matters in secret.’”

The Court went on to say, "an employee's resignation is not one of the three permissible personnel topics enumerated in KRS 61.810(1)(f). While the statute does not define 'dismissal,' that term has a clearly recognized, common meaning in the employment context, which is distinct from a 'resignation.' A dismissal refers to an employer firing or discharging an employee, whereas a resignation refers to an employee's voluntary relinquishment of his or her employment. Webster's II New College Dictionary 327, 943 (1995); Black's Law Dictionary 537, 1424 (9th ed.2009). The General Assembly determined the specific personnel subjects that can be discussed in closed session and it expressly did not include an employee's resignation."

The 1997 Supreme Court opinion referenced above involved the restructuring and reorganizing of a school system’s administrative staff that resulted in the elimination of certain positions. The 2012 Supreme Court opinion involved the resignation of a school superintendent. In 1997, the Court found that the agency  “expanded the intended scope of the . . . exception and improperly concealed matters otherwise appropriate to the view of the public.” In 2012, the Court found that the agency’s misplaced reliance on the exception “reflected a liberal construction of the exception that is not supported by either its express language or the strict construction mandate in KRS 61.800.” Both agencies were found to have violated the Open Meetings Law.

The board would do well to look closely at both of these Supreme Court opinions. The facts of both are sufficiently similar to the facts that gave rise to the April 17 closed session that they provide critical guidance.

Only the Kentucky Board of Education members know what was discussed in that four hour closed session. The length of the closed session -- coupled with the board's public admission that Commissioner Pruitt’s performance was not at issue and that he was not being dismissed for cause, as well as the availability of an "employment contract amendment" and a named interim successor to Commissioner Pruitt immediately upon resumption of the open session -- suggests that the discussion exceeded the permissible scope of the provision authorizing closed session discussions that might lead to dismissal.

What is clear from both referenced cases is 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."

To be clear, a discussion of a “different direction,” for the KBE or for education in Kentucky, is not an appropriate subject for a closed session, and any part of the discussion touching on this general topic was almost certainly improper.

The new Kentucky Board of Education members would benefit from a crash course in open meetings compliance. The older members might benefit from a refresher course as well. What, if any training opportunities are available to the members is unclear, but -- unlike city, county, school, and university officials under a law adopted in 2005 -- state officials are not even mandated to receive introductory materials on open records, meetings, and record management laws within 60 days of the day their term begins.

As part of its commitment to expanding awareness and understanding of Kentucky’s Open Records and Meetings Laws – both of which govern the conduct of public officials in the discharge of their public duties -- the Bluegrass Institute Center for Open Government stands ready to assist in any training initiative undertaken by the board.

Notwithstanding an inauspicious start, the board should make a firm commitment to transparency and accountability both in policy and in practice. Educating the members on their duties under Kentucky’s Sunshine Laws is the first step in this important process.