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Outside the Act: Important meetings rules not fully covered in the law
 
Kentucky School Advocate
February 2018
John Fogle
By John Fogle
KSBA Staff Attorney
 
Amid Kentucky’s evolving education landscape, there remains a constant: School leaders need a working knowledge of Kentucky’s Open Meetings Act (OMA). Most are generally familiar with the major rules, such as what constitutes a meeting, meeting conditions and closed sessions. But there are three meetings rules “outside the OMA” that should be on Kentucky school leaders’ collective radar screens.

The School Calendar
In 2017, the legislature amended KRS 158.070 to modify the meetings process that covers adoption of the school calendar, which must be done by May 15 each year. The statute provides that upon the recommendation of the superintendent, the board appoints a calendar committee consisting of representatives of designated constituencies.

First, the fact that the committee is mandated by law is significant. Committees mandated by statute or officially appointed by another public agency are themselves covered by the OMA. This means the calendar committee needs to follow the OMA. Second, a school board must hold two meetings to fully act on the school calendar: one in which the board hears and discusses recommendations from the superintendent and the calendar committee, and a subsequent meeting in which the board adopts the calendar. If either of these required meetings is a regular meeting, the board must give 24 hours’ notice to media outlets that are entitled to special meeting notices, including notice that one of the items to be considered in the regular meeting will be the school calendar. These unique regular meeting “calendar” notice requirements are not set forth in the OMA itself. It is a “new wrinkle,” but it does not turn such a meeting into a special meeting. Keep in mind that the usual OMA special meeting requirements apply to any special meeting addressing the calendar. 

Evaluation of the Superintendent
Even though the OMA’s personnel exception [KRS 61.810(1)(f)] applies to closed-session discussions that might lead to the discipline or dismissal of an individual employee, two OMA decisions issued by the Kentucky Attorney General in the late 2000s essentially set forth the rule that unless a superintendent evaluation discussion entails consideration of tangible and significant discipline, a school board cannot rely on this exception for closed-session discussions covering its evaluation of the superintendent. (08-OMD-165; 09-OMD-115) 

However, in 2010 the certified employee evaluation statute was amended to provide that preliminary discussions relating to a superintendent’s evaluation shall be conducted in closed session. [KRS 156.557(6)] The OMA provision authorizing such closed discussions [KRS 61.810(1)(k)] applies to meetings specifically required to be conducted in privacy by state or federal law, rather than the personnel exception. The language in the certified evaluation statute that triggers this state law privacy exception is contained outside the OMA. Importantly, this subsection also requires the board to discuss and adopt the written summative evaluation of the superintendent in open session, which is to be reflected in the minutes “and made available to the public on request.” 

Student Hearings
The same OMA exception that authorizes closed discussions or hearings that might lead to discipline or dismissal of an individual employee also applies to individual student disciplinary hearings. Indeed, there is authority that a board may take final action in closed session on a student expulsion. What about student records confidentiality under federal and state law where the board is asked to address a student grievance or hearing matter that does not entail the potential discipline of a student? In 10-OMD-128, the Office of the Attorney General dealt with a complaint that a school board impermissibly conducted a closed session discussion of “out-of-area” attendance requests of two individual students. The regular student records confidentiality laws generally protect against disclosure of information contained in student records. The OAG agreed with the school district that considering out-of-area requests was tied to confidential student information, including psychological factors, academic considerations and family hardships. The OAG ruled that the state law [KRS 61.810(1)(k)] covering meetings that state or federal law require to be conducted in privacy, coupled with student records confidentiality law, authorized the board to discuss the specific out-of-area requests in closed session. 
 
All of these situations demonstrate that school leaders must often look beyond the text of the Open Meetings Act itself to properly discuss or act on a matter in a meeting. If in doubt, consult your school board’s attorney. 
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