"Neither the board nor the department considered the fact that
[a committee created by the Board] needed to comply
with Kentucky’s open-meetings law. It
appears the board
and its advisors believed the law didn’t apply
and the
subcommittee would be free to operate totally in secret.”
KDE doesn't believe Attorney General's opinion
impacts ongoing commissioner search process
This from
KSBA:
Attorney
General Jack Conway has determined that a Kentucky Board of Education
committee violated the state’s Open Meetings Act when it met to review
prospective consultants to aid in the search for the next commissioner
of education.
The
opinion was sought by the Bluegrass Institute for Public Policy
Solutions - a frequent critic of the state Department of Education and
public education in Kentucky in general.
The dispute centered on
May meetings of a KBE subcommittee, consisting of Chairman Roger Marcum
and members Grayson Boyd and David Karem. The panel was created to
screen respondents to a request for proposals from firms to work on the
search for retiring Education Commissioner Terry Holliday's successor.
The KBE ultimately hired one of the applicants, Asher/Greenwood &
Associates, a Florida company that has been recruiting candidates for
the post.
According
to the opinion, the Department of Education responded to the complaint
in a letter asserting that “'Department employees, jointly with the
three [Board] members, met [whether by telephone or in person] to review
and score the applications received for the initial portion of the
search firm selection process. ...This group of Department employees and
three Board members existed on a time-limited basis, for completion of a
single task as contemplated by the statute.’ Counsel further advised
that ‘[t]his group was not viewed as a formal committee of the Board, as
no committee of the Board is for a single task and no committee of the
Board contains members except those who serve on the Board.’ No final
actions were taken by the 'group' as the next stage of the process
continued in a public meeting of the Board.”
However,
in the Aug. 14 opinion, the AG held that “the Board is a ‘public
agency’ under KRS 61.805(2) and it established and created the committee
during its meeting on April 1, 2015. Accordingly, the committee itself
was a ‘public agency’ for purposes of the Open Meetings Act. To hold
otherwise ‘would clearly thwart the intent of the law.’”
“When
a quorum of the committee came together to discuss public business, a
meeting occurred. At a minimum, on any such occasion there [should have
been] a determination that a quorum [was] present and a commencement of
proceedings prior to the beginning of any discussions properly held in
closed session. Established and created by the Kentucky Board of
Education during its April 1, 2015, meeting, the committee was a ‘public
agency’ and thus required to comply with provisions of the Act,” the
opinion reads.
The
Bluegrass Institute had asked that the KBE conduct a webinar training
of its members in the Open Meetings Act. Conway rejected issuing such a
directive, saying in the opinion, “Because the role of this office in
adjudicating a dispute arising under the Act is limited to issuing a
decision stat[ing] whether the agency violated the provisions of KRS
61.805 to 61.850, the Attorney General declines to comment on the
remedies proposed or implemented.”
According to a statement
released by the Department of Education, "KDE is in the process of
reviewing the opinion. It is KDE's understanding that the Attorney
General's opinion neither invalidates the selection of the search firm
nor the ongoing process of selecting a new commissioner of education."
The
KBE is scheduled to meet in Lexington Aug. 25 to consider selection of a
short list of finalists in the commissioner search. If the timetable
holds, the state board will meet Aug. 28 and 29 to interview the
finalists and possibly select a new commissioner.
The full Attorney General’s opinion follows:
15-OMD-155
August 14, 2015
In re: Jim Waters/Kentucky Board of Education
Summary:
Because the Kentucky Board of Education, a public agency within the
meaning of KRS 61.805(2), established and created the committee
comprised of Board members and employees of the Department of Education,
the committee itself was a public agency within the meaning of KRS
61.805(2)(g). Accordingly, the committee was required to comply with
requirements of the Open Meetings Act.
Open Meetings Decision
Jim
Waters, President of the Bluegrass Institute for Public Policy
Solutions, (“Bluegrass Institute”) initiated this appeal challenging the
Kentucky Board of Education’s (“Board”) denial of his June 11, 2015,
open meetings complaint. Mr. Waters directed his complaint to Board
Chair Roger Marcum challenging “the actions of an officially appointed
Board committee that appear inconsistent with the requirements of KRS
61.805 to 850.” Mr. Waters observed that “even if a public agency is
allowed to conduct some business in closed session, the meeting still
must be advertised” and initially opened in public, and final actions
must be taken during open session. By all indications, the committee
failed to comply with any of these statutory requirements.
The
committee “was created by a formal vote of the Board during its April
1, 2015 regular meeting,” Mr. Waters noted, “and charged with managing
and narrowing the search for a firm to assist the Board in finding a new
commissioner of education.” This dispositive fact is undisputed. Mr.
Waters quoted relevant excerpts from a May 7, 2015, news release by the
Kentucky Department of Education (“Department”) indicating that the
committee narrowed the search from three responsive bidders to one for
consideration by the Board. He also quoted the May 4, 2015, text
message from Chairman Marcum to Bluegrass Institute education analyst
Richard Innes indicating the committee spent “many hours” reviewing
proposals in further support of this position. Thus, Mr. Waters
maintained that the committee was a “public agency” under KRS
61.805(2)(g) and therefore violated the Open Meetings Act in failing to
comply with either KRS 61.820(2) or 61.823(3) and other provisions,
including 61.815(1). In accordance with a line of prior decisions
construing the literal terms of KRS 61.805(2)(g), this office agrees
with Mr. Waters’ characterization of the committee.
By
letter dated June 24, 2015, counsel for the Department, which acts on
behalf of the Board and “as its agent,” explained that in this capacity,
the Department issued the RFP for the search firm selection process
conducted under KRS Chapter 45A. The Department received and processed
the applications received. “Department employees, jointly with the
three [Board] members, met [whether by telephone or in person] to review
and score the applications received for the initial portion of the
search firm selection process.”
The Board maintained that
“[t]his group of Department employees and three Board members existed on
a time-limited basis, for completion of a single task as contemplated
by the statute.” Counsel further advised that “[t]his group was not
viewed as a formal committee of the Board, as no committee of the Board
is for a single task and no committee of the Board contains members
except those who serve on the Board.” No final actions were taken by
the “group” as the next stage of the process continued in a public
meeting of the Board. Under existing legal authority, none of these
facts alter the relevant analysis.
Because the role of this office in adjudicating a dispute arising under
the Act is limited to issuing a decision “stat[ing] whether the agency
violated the provisions of KRS 61.805 to 61.850,” the Attorney General
declines to comment on the remedies proposed or implemented.
08-OMD-164, p. 2; 11-OMD-162.
However, the relevant facts
regarding creation and establishment of the committee are undisputed and
confirm Mr. Waters’ position that the committee was a “public agency”
within the meaning of KRS 61.805(2)(g) that was required to comply with
provisions of the Act. During the discussion of the best manner in
which to review the responses to the RFP, Mr. Waters emphasized, “Board
members suggested forming a committee to reduce the list of bidders to
be considered by the full board membership” and Board Vice Chair
Jonathan Parrent made a formal motion to create a committee for that
purpose. Mr. Waters maintained, and the Board has not disputed, that
the committee was created “by a formal vote of the Board[.]” The Board
Chair appointed the members of the committee, including several from
the Department. Mr. Waters rejected the Board’s position that a
committee created for a limited time and purpose does not fall within
the definition of KRS 61.805(2)(g), correctly asserting that KRS
61.805(2)(g) specifically includes “ad hoc committees.” See 00-OMD-96.
“Whether this group is considered a ‘committee,’ [a ‘subcommittee,’] an
‘ad hoc committee,’ or an ‘advisory committee’ makes no difference,
since all of these are covered by the definition in KRS 61.805(2)(g).”
09-OMD-168, p. 7 (Planning Commission, a public agency, “established and
created the” Comprehensive Plan Committee, “and controlled it inasmuch
as it assigned the Committee the task of drafting the goals and
objectives and reporting back” and the Committee itself was therefore a
public agency); 06-OMD-068, p. 10 (record on appeal confirmed that a
committee was formed in the “common and approved sense of the word”
notwithstanding characterization by the agency of it as “group” on
appeal).
In
responding to Mr. Waters’ appeal, the Board contrasted the committee
with “groups” described in 00-OMD-141. However, it did not dispute Mr.
Waters’ account of the determinative facts – the manner in which the
committee was created, his description of the specific task it was
delegated or the business it discussed. Instead, the Board argued that
even if this “group” is determined to constitute a public agency, the
group “met only one time” to discuss and then advise on a procurement
issue which state law requires to be conducted in closed session. This
fact is not dispositive. Rather, “the applicability of an exception
permitting discussion in closed session does not, as the [Board] argues,
take the committee entirely outside the scope of the” Act. 12-OMD-140,
p. 9. Any meeting of a quorum of the committee at which public
business was discussed or action was taken was required to be convened
in open session pursuant to KRS 61.810(1). Id. (“action taken,” if
any, “need not be final action”); see also 09-OMD-168. It was also
subject to “the notice provisions of KRS 61.823 for special meetings, or
if and when regular meetings [were] held, the schedule provisions of
KRS 61.820.” Id., pp. 9-10. Assuming the committee was authorized to
conduct a closed session discussion(s) under KRS 61.810(1)(a)-(m), it
was nevertheless required to comply with KRS 61.815(1)(a)-(d). This
office makes no finding on the Board’s argument regarding the propriety
of the discussions held under KRS 61.810(1)(k) as the original complaint
did not allege that discussions of the committee could not have been
properly held in a closed session(s); this issue is therefore not ripe
for administrative review.
“Public
agency” is broadly defined at KRS 61.805(2) to include “[a]ny board,
commission, committee, subcommittee, ad hoc committee, advisory
committee, council, or agency, . . . established, created, and
controlled by a ‘public agency’ as defined” in subsections (a) - (f), or
(h) of this provision. KRS 61.805(2)(g). The Board is a “public
agency” under KRS 61.805(2) and it established and created the committee
during its meeting on April 1, 2015. Accordingly, the committee itself
was a “public agency” for purposes of the Open Meetings Act. To hold
otherwise “would clearly thwart the intent of the law.” Lexington
Herald-Leader Company v. University of Kentucky Presidential Search
Committee, 732 S.W.2d 884, 886 (Ky. 1987)(holding that Presidential
Search Committee created by action of the UK Board of Trustees, a public
agency created by statute, was itself a public agency subject to
provisions of the Act); compare Taylor v. Bowling Green Municipal
Utilities, No. 2011-CA-00592, 2012 WL 5371994 (Ky. App. Nov. 2,
2012)(distinguishing Presidential Search Committee in holding that group
comprised of three Utility employees did not qualify as “committee”
under KRS 61.805(2)(g) as the Utility’s Board had “not requested the
action or approved it,” nor had the Board delegated authority to said
employees and the “informal group” was therefore “not akin to a
committee created by a formal action of a Board”).
Prior decisions of this office support the conclusion we reach here.
See 10-OMD-149 (if screening committee was “established and created by
the [Kentucky Department of Education] under the terms of the published
policy, and controlled by [the Department] to the extent its duties were
defined by the policy,” it was a public agency per KRS 61.805(2)(g));
see also 93-OMD-49 (a three member grievance committee appointed by the
Mayor of Scottsville was a public agency); 97-OMD-139 (Housing Appeals
Committee at Eastern Kentucky University is a public agency pursuant to
KRS 61.805(2)(g) and its meetings are open to the public unless it can
properly invoke a statutory exception); 99-OMD-77 (Finance and Budget
Committee created by Franklin County Fiscal Court as an advisory body is
a public agency); 06-OMD-068 (“R/V Committee” appointed by Mayor to
review section of zoning ordinance and present a proposed text amendment
to City Council was a public agency); 95-OMD-124; 04-OMD-148;
05-OMD-117; compare 00-OMD-141 (seven Department employees, four
contractor representatives, and one employee of the Office of Education
Accountability did not fall within KRS 61.805(2)(a) through (h) as the
informal workgroup was “neither established nor created by the Kentucky
Board of Education or the Department, nor [was] it controlled by these
agencies”)(emphasis added); 09-OMD-056.
Insofar
as the committee, “standing alone, constituted a public agency for
purposes of the Open Meetings Act, this office considers the total
composition of the [committee] itself, rather than the total composition
of the [Board], in determining whether a quorum of the [committee] was
present.” 06-OMD-211, pp. 4-5. When a quorum of the committee came
together to discuss public business, a meeting occurred within the
meaning of KRS 61.805(1); 06-OMD-211, p. 5. “At a minimum,” on any such
occasion “there [should have been] a determination that a quorum [was]
present and a commencement of proceedings prior to the beginning” of any
discussions properly held in closed session. 12-OMD-140, p. 7.
Established and created by the Kentucky Board of Education during its
April 1, 2015, meeting, the committee was a “public agency” within the
meaning of KRS 61.805(2)(g) and thus required to comply with provisions
of the Act.
Either party may appeal this decision by initiating
action in the appropriate circuit court under KRS 61.846(4)(a). The
Attorney General should be notified of any action in circuit court, but
should not be named as a party in that action or in any subsequent
proceedings.
Jack Conway
Attorney General
Michelle D. Harrison
Assistant Attorney General
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