By Brad Hughes
KSBA Director of Member Support/Communications Services
2013 has been a tough year on Open Meetings Act challenges involving Kentucky public bodies.
• A university board of regents voted not to extend a president’s contract, but had to do so again after Attorney General Jack Conway ruled that a prior social gathering where the contract was discussed violated the law.
• A parent challenged the legality of a school board meeting to which a large crowd was denied access due to space limitations. The AG sided with the parent.
• The AG determined a city council broke the law twice, for closing a committee meeting to discuss personnel and for selectively allowing some nonmembers to participate.
• After a board of education announced plans for a closed session on proposed budget cuts and personnel, a newspaper appealed to the AG. The meeting was called off.
• A school board member contested whether a colleague could participate in a meeting, including a closed session, via telephone. The AG ruled it was OK for the distant member to listen, but not to vote or even be part of determining a quorum.
This is a day and time when demands for greater transparency are voiced regularly by critics of governmental agencies and leaders as well as on editorial pages and Internet blogs. Often, the public agency comes out on the losing end – very publicly.
The wrong question
There are plenty of solid reasons for closed school board sessions, enumerated by the exceptions to KRS 61.810: student or employee disciplinary hearings, certain land purchases, proposed or pending lawsuits and collective bargaining contract talks.
But too often the decision appears to be based on, “Can we go into closed session?” rather than a better question, “Do we need to go into closed session?”
Certainly, most people prefer to take up unpleasant matters in private. It’s just as understandable when people feel there would be more honest exchanges of views on controversial topics if participation were limited.
That’s not the same thing as a situation where the talks need to be handled in private. Nor is a crimped comfort level for leaders an option under the exceptions to the Open Meetings Act.
At the very least, school leaders might make a case for a closed session, and explain that need to constituents who want in, but justifiably will be excluded. That should mean more than merely quoting the exclusion section of the statute.
Ask before you act
Experience also teaches that most closed meetings of school boards can be anticipated. And since the board employs a board attorney, it’s worth whatever billable hours ensue to get a legal opinion on the open or closed session options. A public official going into a closed meeting who can cite “on advice of counsel” can be in a much stronger public position than one acting solely on his or her own judgment.
School leaders also have access to experienced legal pros like KSBA’s own John Fogle or Wayne Young of the Kentucky Association of School Administrators. That’s no slam on board attorneys, but if a closed session is going to draw heat, the superintendent and board chair can show they’ve gone the extra mile to validate the decision.
Fogle (carrying on the work of former Legal Services Director Steve Kirby) updated an outstanding publication, School Districts and the Open Meetings Act, in 2012. At the risk of sounding commercial, it’s hard to imagine a superintendent not buying a copy and having it at any meeting that may involve a closed session – especially if the board attorney isn’t present.
The Last Word
KRS 61.800 begins thusly: “The General Assembly finds and declares that the basic policy of (Kentucky law) is that the formation of public policy is public business and shall not be conducted in secret, and the exceptions provided for…shall be strictly construed.”
The law – and frequently the Office of the Attorney General – are going to be on the side of those arguing against closed board meetings. Just be sure the basis is valid, backed by legal counsel and spelled out so the public doesn’t perceive your next closed session as an escape from their eyes and ears.
And that’s a message worth getting out.