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CASE NO. 09-CI-8863 JEFFERSON CIRCUIT COURT

DIVISION (10) TEN

JUDGE IRV MAZE

BOARD OF EDUCATION OF

JEFFERSON COUNTY, KENTUCKY PLAINTIFF

OPINION AND ORDER

THE COURIER-JOURNAL, INC., ET AL. DEFENDANTS

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This matter came before the Court on December 10, 2009, on cross motions for summary judgment filed by the parties in this case. Present at the hearing was counsel for the Plaintiff, Board of Education of Jefferson Co., Ky. (hereinafter “Jefferson County School Board”), the Honorable C. Tyson Gorman. Also present was Counsel for the Defendants, The Courier-Journal, Inc. and Nancy Rodriguez (collectively “The Courier-Journal”), the Honorable Jon Fleischaker. In recognizing the public importance of the issues presented, this Court permitted the Kentucky Department of Education, the Kentucky Board of Education, the Kentucky School Boards Association, and all of the regional educational cooperatives in Kentucky, the Kentucky School Boards Association (collectively as “KDE et al”) to file an amicus curiae brief and participate in the hearing in support for conducting school superintendent evaluations in closed session. Additionally, because of its direct stake in the legal issues presented herein, the Court has allowed the Jefferson County Teachers Association (“JCTA”) to submit their brief and participate in the hearing in support for conducting School Superintendent evaluations in closed sessions. After a careful review of the record, recorded oral arguments, submitted memoranda and applicable case law, the Court finds as follows:

FACTS

Central to this dispute is whether the Kentucky Attorney General properly interpreted the Open Meetings Act in deciding the Courier-Journal’s request of for a ruling regarding an alleged violation of the open meetings law by the Jefferson County School Board.

The underlying controversy surrounds a Jefferson County School Board meeting held on June 29, 2009. The stated purpose for the special meeting was to conduct an evaluation of Superintendent Sheldon H. Berman, Ed.D. Upon proper motion and prior to the public adoption of the evaluation, the Board voted to hold an executive session to discuss the Superintendant’s performance. After returning from the executive discussion, the Board publically accepted the evaluation and publically disseminated a pre-prepared four-page evaluation after an affirmative public vote by the Board.

As justification for the superintendent’s private evaluation, the Board relied upon the following three exceptions:

(1)The discussion of pending litigation; KRS 61.810 (1) (c)

(2)The formulation of collective bargaining strategy; KRS 61.810 (1) (e)

(3)The discussion of potential disciplinary action. KRS 61.810 (1) (f)

These exceptions are codified in Kentucky’s Open Meeting Act which the Jefferson County School Board relied upon in conducting the private meeting.

Following the meeting, a reporter for the Courier-Journal, Nancy Rodriguez, sent a complaint to Chairwoman Debbie Wesslund and requested the Chairwoman to review the matter. As a basis for her complaint, Ms. Rodriguez pointed to a previous Open Meeting Opinion issued by the Kentucky Attorney General’s Office which concluded that evaluations of superintendents must be conducted in open session. Ms. Rodriguez asked Chairwoman Wesslund to respond within three (3) business days.

Chairwoman Wesslund replied to the complaint within the time permitted by statute. On behalf of the Board, the Chairwoman informed Ms. Rodriguez that while the Board was aware of the previously issued Open Meetings Opinion issued by the Office of the Attorney General, the Board did not deem the procedure applicable to the superintendant’s evaluation. Further, the Chairwoman stated that many other school boards and the Kentucky Board of Education have continued to conduct superintendent performance evaluations in private, even after the adoption of that Attorney General’s Opinion.

On July 10, 2009, The Courier Journal filed an appeal with the Attorney General seeking review of the of Jefferson County School Board’s position on holding the private meeting. In response to the open records complaint, the Jefferson County School Board immediately responded that they had not violated the Open Meeting Act and again cited the exceptions as justification. Additionally, The School Board presented a new argument in a letter to the Attorney General. The new argument stated that the letter given to Ms. Wesslund by Rodriguez was insufficient to constitute a “complaint” as contemplated by the Open Meetings Act. The Board argues that the letter failed to offer a corrective course of action, and as such, the Courier-Journal’s appeal to the Attorney General’s Office should be dismissed.

After reviewing the Courier-Journal’s complaint, the Attorney General found that a proper complaint had been filed with the School Board and it substantially complied with the provisions of KRS 61.846. Further, the Attorney General found that the School Board’s reliance on the exceptions cited above was misplaced. The Attorney General agreed with the Courier-Journal’s Complaint and found an Open Meetings violation against the Jefferson County School Board.

The School Board now perfects an appeal to this Court pursuant to KRS 61.846 (4) (a).

OPINION

As defined in KRS 61.805(2) (c), the Jefferson County Board of Education is a public agency, giving this Court jurisdiction to enforce the rights of the parties pursuant to KRS 61.848. According to the provisions of KRS 61.848(3) this Court must review this case de novo.

1. The Validity of The Courier-Journal’s Complaint

The first issue for the Court’s review is if a proper complaint was initiated by Ms. Rodriguez. An examination of the pleadings reflects that a written notice calling a special meeting of the Jefferson County Board of Education was made pursuant to KRS 61.823. The purpose of the special meeting was to conduct a discussion of pending litigation and to conduct an evaluation of the Superintendent. The notice informed the public that “portions of the meeting would be closed to the public as provided for under KRS 61.810 (1) ( c ) (e ) and (f) of the Open Meeting Act.”

At that meeting a motion was made and seconded to adjourn to a “closed session” for purposes of discussing a performance evaluation of a public school superintendent. The motion also made mention that: (1) there would be a critical consideration of past performance and a specific direction regarding areas of improvement of future performance; (2) a discussion of pending lawsuits; and (3) discussion and strategies for collective bargaining negotiations. The closed session lasted approximately one hour. Upon the Board’s return to the public session the written evaluation of Superintendent Berman, a four-page typed document, was disseminated to the public.

At the onset, it would be very easy for the Court to avoid making a difficult ruling by determining that the letter sent by Ms. Rodriguez was insufficient to invoke the provisions of the Open Meeting Act since it did not contain any specific course of corrective action. However, this Court disagrees with the Jefferson County School Board’s position, since it is readily apparent from the record that the Board’s decision not to conduct an open meeting had already been made when the executive session was conducted.

First, the exceptions to the Open Meeting Law were repeated by Chairman Wesslund in response to the letter received from the Courier-Journal, remain repeated in correspondence to the Attorney General and finally again repeated in this litigation. In short, the Boards decision was already made and remains consistent. Second, as the Board indicated in response to the Courier-Journal, the previous Attorney General’s Opinion, which previously discussed the same subject, simply did not apply to them. Third, this Court finds from the record that a suggested course of action was provided by Ms. Rodriguez in her request for the Board to investigate and to discuss the matter with her within three days. Finally, and in any event, the Courier Journal could have bypassed the Attorney General by filing an original action in Circuit Court pursuant to KRS 61.848 et seq.

It is noted that the only response received by Ms. Rodriguez involved the same statement of the three exceptions cited in justifying the closing of the meeting to the General Public. The Court believes the interpretation of the Attorney General is correct that a valid complaint was filed with the school Board and that no magic language is required to be stated in order to invoke the provisions of the Open Meeting Act.

2. Were the Exceptions Cited by the School Board Valid?

In reviewing the validity of the School Boards use of the cited exceptions, the Court notes that the Open Meetings Act requires that all meetings of a quorum of a public agency “at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times ...” KRS 61.810(1). With this guiding principle the Court will now focus on the reasons stated by the Jefferson County Board of Education as justification in conducting a closed meeting to discuss the performance evaluation of the Superintendent of the Jefferson County Board of Education.

Upon reviewing the information contained herein, it is apparent to this Court that while it may have been more convenient for the Board and Superintendent to have this discussion held in private, the School Board must be in compliance with the Statute Statutes to do so. As discussed below, a review of the exceptions cited by the Board to support of their decision to conduct this matter in private, do not justify closing the meeting to the general public only to re-open the meeting to the public for purposes of distributing a prepared four-page document.

(A) The Litigation Exception

As to the litigation exception, this Court believes the language found as an exception in the statute should be given its normal meaning. As was previously stated by our Supreme Court in a published opinion, the Open Meeting Act envisions that this exception (litigation) would apply to matter commonly inherent to litigation, such as preparation, strategy or tactics. Floyd County Board of Education vs. Ratliff, 955 S. W. 2d 921, 924 (Ky. 1997). To hold otherwise and justify the closing of the meeting which concluded by passing out a previously typed four page “report” would be stretching the term “litigation” beyond its breaking point. If there were serious litigation matters that warranted private discussion, a simple solution would have been to discuss those matters in private, adjourn the closed session and return to the public to discuss legitimate items of the Superintendent’s performance in order to comply with the meaning of the Open Meetings Act and then pass out their previously prepared report.

(B) The collective Bargaining Exception

As to the collective bargaining negotiation exception between public employers and their employees or their representatives, the statutory language should be given its normal and customary meaning in order to justify closing a public meeting. This Court is very doubtful that Superintendent Berman is a member of organized collective barging unit. If there were serious collective bargaining issues that needed to be discussed, involving Dr. Berman with other bargaining units, a simple solution would have been to discuss those matters in private, adjourn the closed session and return to the public to discuss the Superintendent’s performance, all while being Open Meeting Act compliant.

As to the remaining exception that deals with potential disciplinary action to be taken against an employee, a review of the exception which is relied upon by the Plaintiff in their effort to conduct the evaluation is closed session is noted below:

(f) Discussions or hearing which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee’s, member’s or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret(.) (Emphasis added by the Court).

The language found in the cited statute above should be given should be given its normal and customary meaning in order to carry out the legislative intent and to give that intent the effect to which it was intended. Fiscal Court of Jefferson County v. Louisville, Ky. 559 S.W.2d 478 (1977).

Additionally, the Court notes that the legislated public policy of the Open Meeting is found in KRS 61.800 and reads as follows:

Legislative statement of policy

The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.

With this guidance, this Court believes that the open meeting laws are to be narrowly construed in order to carry out their statutorily mandated terms. To justify the closing of the meeting using this exception only to disseminate to the public of a previously prepared four page document would be improper. If there were serious personnel issues that needed to be discussed in during a special meeting that did not relate to a review of the Superintendent’s performance, those matters could have been discussed in private and the Board could have returned to the public to perform the evaluation.

This Court is mindful that it is often difficult to discuss matters such as these in public. Additionally, some fear such discussion is counter-productive. Perhaps, that is why the other parties herein have made known their opinions to this Court. Kentucky law, however, provides that when there is an exception given to close an open meeting, such exception should be obvious and not manufactured in order to work around the provisions of KRS 61.848 (1) et seq. In short, should this statute be modified in order the give the Plaintiff the relief to which they seek, it should be the work of the General Assembly and not within the jurisdiction of this Court.