Attorney General’s ruling says Kentucky school boards can’t go into closed session to discuss reappointment of sitting superintendent, new contract

An Aug. 8 Open Meetings decision by Attorney General Jack Conway may change how some Kentucky school boards discuss keeping a current superintendent on the job with a new contract.

Ruling on a complaint by the editor of a newspaper in Martin County, Conway’s office found that the Kentucky Open Meetings Act does not allow closed session discussions between a school board and a current superintendent regarding the superintendent’s potential appointment and contract for a future term.

In an email to superintendents and members of the Council of School Board Attorneys, KSBA staff attorney John Fogle said, “This is consistent with earlier decisions stating that the (personnel exception of the law) does not cover discussions relating to the retention of an existing employee.  However, this is the first decision applying this rule to superintendents.” 

Fogle added, “This OMD (Open Meetings Decision) should not affect the potential application of the personnel exception to situations where a vacancy in the office of the superintendent is declared and several candidates are interviewed or evaluated after completion of the superintendent screening process.”

In the opinion, Conway cited a case,Carter v. Smith, in which “the Court held in that the terms “appointment, discipline, or dismissal” did not encompass a factual situation where a board was discussing an arrangement whereby the school superintendent would voluntarily resign and be awarded a contract as a consultant.  Since “resignation and consultancy were the topics discussed in the closed session,” topics which are not included in KRS 61.810(1)(f), the case was not one of appointment or dismissal.

The Court noted,“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 hearing which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.”  These three topics are the only personnel matters a public agency may discuss in closed session.  Discussions of any other matters are expressly precluded. 

Conway’s decision went on to state that “it has been the rule in the decisions of this office that the terms ‘appointment’ and ‘reappointment’ are not synonymous when the latter term is used to describe the continued employment of a current agency employee.” Whereas “the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion” concerns a mere attempt to secure the continued employment of an existing employee. Therefore, the Board’s discussion of a new contract for the current superintendent did not relate to the “appointment” of an employee. 

Furthermore, Conway wrote, “this was not a discussion of whether to terminate the superintendent’s contract early for cause, but whether to make a renewed four-year contract with him beginning almost a year in the future. There is thus no credible argument that it related to “discipline” or “dismissal” of the superintendent. Accordingly, since the discussion in closed session did not concern the appointment, discipline, or dismissal of an employee under KRS 61.810(1)(f), the Board violated the Open Meetings Act.”

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