TO BE PUBLISHED
September 9, 1994
IN RE: Eddie Coop/Clinton County Board of Education
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by Eddie Coop in connection with his letter to the Superintendent of the Clinton County Schools about a closed session of a meeting of the school board.
In a letter to the Superintendent of the Clinton County Schools, dated July 25, 1994, Mr. Coop referred to a meeting of the school board held on July 11, 1994. He said the board went into a closed session to discuss personnel, an item which was not on the board's agenda. He also stated that personnel matters generally cannot be discussed in a closed session.
The Attorney General's Office on August 25, 1994, received a note from Mr. Coop stating that he had not received any response from the school system in regard to his letter of July 25, 1994.
The undersigned Assistant Attorney General talked by telephone on August 30, 1994, with Sam Gibson, Superintendent of the Clinton County School System relative to Mr. Coop's letter of July 25, 1994, to the superintendent. Mr. Gibson said a letter had been sent to the Attorney General's Office about the matter. The undersigned suggested that a copy of that letter be sent to Mr. Coop.
On August 31, 1994, the Attorney General's Office received a letter from Mr. Gibson. In his opinion the school board was not in violation of the law as it was justified in conducting a closed session to establish a position which would
subsequently require the hiring of additional personnel. A copy of the minutes of the meeting of July 11, 1994 were attached to Mr. Gibson's letter and they reflected that the school board went into a closed session "to discuss the possibilities of an additional position that may lead to the employment of an individual employee."
KRS 61.846(1) provides in part as follows relative to a complaint under the Open Meetings Act and the response by the public agency:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.
The Clinton County Board of Education is obviously a public agency (KRS 61.805(2)(c)) and thus subject to the terms and provisions of the Open Meetings Act (KRS 61.805 to KRS 61.850).
KRS 61.846(1) mandates that a school board respond in writing, within three business days after receipt of the complaint, to the person submitting the complaint against such a public agency. Failure to do so constitutes a violation of the Open Meetings Act. See 94-OMD-96, copy attached.
The Clinton County Board of Education violated the Open Meetings Act when it failed to follow the provisions of KRS 61.846(1) relative to the required response by a public agency to a complaint filed against it.
Among the exceptions to the provisions requiring open and public meetings is KRS 61.810(1)(f) authorizing closed sessions pertaining to:
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[.]
While a public agency may go into a closed session to discuss the appointment, discipline or dismissal of a particular person, it cannot go into a closed session to discuss general personnel matters such as the creation of an additional position. Creating a new position must be done in an open and public session while discussions as to the specific person or persons who may be selected for appointment to that position may be conducted in closed sessions. The exception to open and public meetings involving personnel matters is specifically limited to those situations where the public agency is discussing the possible appointment, disciplining, or dismissal of an individual employee of the public agency. See 94-OMD-63, 93-OMD-49, and 92-OMD-1735, copies of which are attached.
Thus, the Clinton County Board of Education violated the Open Meetings Act when it went into a closed session to discuss the possibility of creating a new position with the school system.
The Clinton County Board of Education may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
Rt. 4, Box 648
Albany, Kentucky 42602
Clinton County Board of Education
Route 3, Box 16
Albany, Kentucky 42602