KDE doesn't believe Attorney General's opinion impacts ongoing commissioner search process
Staff report

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.

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

#302

Distributed to:

Jim Waters

Roger Marcum

Kevin C. Brown