0613 ICW John Fogle

0613 ICW John Fogle

In conversation with ... John Fogle, KSBA legal services

In Conversation With…features an interview between a leader or figure involved in public education and a staff member of the Kentucky School Advocate.

This month’s conversation is with John Fogle, staff attorney for KSBA’s Legal and Administrative Training Services. The topic is the Open Meetings Act, some important aspects of it for school board members and recent legal opinions or rulings about its provisions.

Q. Have we had more than the normal amount of Open Meetings issues crop up among school boards lately? What’s going on?

A.  It kind of comes in cycles, with new folks getting in the saddle as board members and learning what the Open Meetings Act statute says as opposed to received folk wisdom and that sort of thing. My focus is on the statute itself, the exceptions and the issues that come up.

Q. What aspects of the Open Meetings Act tend to be most problematic for school boards?

A. Probably one of the perennial issues is the work session, and that is thought of by folks generically as a meeting where no action is taken. There’s nothing wrong with thinking of a work session in that generic sense, but the difficulty is that the Open Meetings Act doesn’t mention “work session.” The Open Meetings Act provides for regular meetings, special meetings, and then as a subset of special meetings, an emergency meeting, which is a pretty rare occurrence. So it’s probably better for school leaders to think of a special meeting as opposed to a work session per se and that’s just because the Open Meetings Act doesn’t provide for a work session.

Q. So what is there about work sessions that gets them in trouble?

A. Thinking that it’s a work session, that it’s informal, and the requirements of the Open Meetings Act are not triggered. And that’s not true because the definition of a meeting is the discussion or action on the public’s business by a quorum of the body. So the significance of a gathering of a quorum of the body being a meeting is that it has to fit in with one of those types of meetings I mentioned earlier – regular meeting or a special meeting.

A special meeting, which is covered by KRS 61.823, requires notice, requires that the notice include the agenda, it requires that the notice be posted at the headquarters of the body and at the place where the meeting is held if that is different from the headquarters, 24 hours before the meeting. And a real important part of that is that the action and discussion as well of the body is limited to what is contained in the notice and the agenda. And those notices have to be provided to media organizations that have requests on file and members of the body, 24 hours before the special meeting is held.

So in the case of a work session that entails the participation of a quorum of the body, folks need to make sure they deal with that as an authorized meeting under the Open Meetings Act.

Q. So are you saying that every work session, because it is not the regular monthly meeting, is considered a special session?

A. That’s not necessarily true. It’s possible and in fact there is an Open Meetings decision on that point, for a school board or any public body to build in what is referred to as a work session or a nonaction session, if you will, as part of its regular meeting schedule.

Q. So they can make it a regular meeting by virtue of making it part of their normal schedule that they approve every year?

A. Right, exactly. And what the Open Meetings Act contemplates is that the public will either have notice of the regular meeting schedule -- and that can include a generically thought of work session that can be built into the schedule before a later “action session” --or it has to be via the more rigorous and detailed special meeting notice requirements.

Q. What are some of the other areas board members might need clarified?

A. I suppose one that’s come up fairly frequently lately is a decision from the Kentucky attorney general distinguishing between employing a superintendent after a board declares a vacancy and interviews various candidates versus retaining their present superintendent.

If the superintendent’s term is coming up on June 30 of the last year of the contract, folks may think of generically nonrenewing a superintendent’s contract, but there’s no provision in statute for that. The real consideration within the statutory framework is whether the board intends to declare a vacancy, which in turn triggers the superintendent screening committee process and interviewing various candidates.

If the board elects to stick with its present superintendent, which would entail contractual negotiations for the future term, the attorney general recently held that the personnel exception (allowing a closed session) under the Open Meetings Act does not cover that situation. The OAG said the so-called personnel exception does not fit discussions or contractual negotiations in that situation.

The attorney general’s rationale for that as I understand it is the language (of the statute) covers an appointment rather than a reappointment and that’s an interesting analysis. The Office of the Attorney General also noted that there is not the same level of reputational interest at stake when you are considering keeping the present employee on board as opposed to interviewing several candidates.

Q. Does that mean if your board is looking to retain its current superintendent, then they would have to negotiate the new contract in open session?

A. Yes, or they would have to consider having the chair or counsel engaging in preliminary discussions. It obviously would stand to stifle some of the candid interaction that might be part of the process if, for example, the superintendent was one among several candidates for the job in a situation where a vacancy was declared and a closed session would be authorized.

Q. I understand there also is a ruling on independent contractors that board should be aware of?

A. A fairly recent decision of the Kentucky Supreme Court involved a situation where a superintendent resigned and then accepted a consultancy from the school board.

Among the issues the court took up was whether it was appropriate under the litigation exception and the personnel exception (permitting closed sessions) for the board to have a closed session prior to accepting the resignation and authorizing the consultant’s contract. And on the consultant’s contract, the court pretty much said in bright line fashion that retaining independent contractors does not fit the personnel exception because by its terms that statute deals with employees. That particular discussion dealt with potential future retention of an individual as a consultant so it was ruled that the personnel exception did not fit.

On the litigation exception in that particular case, there was not a material or written communication threatening litigation nor had the board taken any sort of material steps to take disciplinary action against the superintendent.

Q. How specific does the litigation threat have to be?

In instances I’ve seen, the temptation with any board or any public agency is to apply that rather broadly. If there’s a whiff of potential for a lawsuit, even if there’s not a specific threat, is that being interpreted overbroadly? How specific does threat have to be?

If I had to put a standard in words, the situation would have to be more than mere supposition and would require some kind of tangible threat of litigation, ideally supported by something in writing. Obviously, if a board is facing that kind of situation they have to involve their board attorney. But just the remote prospect or fear that there may be litigation as distinguished from an actual threat or demand letter – that’s generally not going to cut it as far as qualifying for the exception.

Q. What seems to be the source of the most common Open Meetings complaints that are filed against boards for alleged violations?

A. I don’t know if I can narrow that down to school boards, but just in general closed sessions without proper notice and personnel exceptions.

Another important thing for school leaders to be aware of is committees. Committees that are either mandated by statute or regulation, such as the superintendent screening committee, or that are created by an Open Meetings Act body, such as a board of education, are subject to the Open Meetings Act. 

Q. Is there any overarching rule of thumb for boards when it comes to the Open Meetings Act?

A. This sounds like a broken record coming from me, but if there truly is a borderline situation, don’t be afraid to get legal advice. If there truly is a concern or a doubt, don’t be afraid to consult with your board attorney to obtain guidance based on the specific facts that you’re facing. Sometimes it can be a pretty technical statute and sometimes trying to apply common sense can get you in trouble.

Q. What’s the best way for a board member to get familiar with the Open Meetings Act?

A. We have a publication, School Districts and the Open Meetings Act, that is geared toward school board members, school leaders and attorneys and provides an overview. There is also the Kentucky attorney general’s website, which contains an outline of basic Open Meetings Act points that is not geared toward school folks but there’s a lot of useful information there. And then you can access Open Meetings decisions on the attorney general’s website going back to 1992 or 1993. We also provide a school law resources service where I do quarterly summaries of all the Open Records and Open Meetings decisions that I feel would be of interest to school leaders, with links to the full decisions of the attorney general’s office.

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