Legislature sends Beshear bill to allow superintendents to be evaluated in secret

Only Gov. Steve Beshear stands between the law books and legislation that would allow Kentucky school boards to evaluate superintendents in secret. The state Senate unanimously gave final passage yesterday to the House-amended version of Senate Bill 178. Now Beshear can veto it, sign it into law or allow it to become law without his signature.

"Beshear spokeswoman Kerri Richardson said the governor would carefully review the bill," The Courier-Journal reports. "It requires that final evaluations be discussed and voted on in public. School boards also would have the option of holding the preliminary sessions in public." The bill would reverse recent court rulings based on the state Open Meetings Act, which allows public agencies to discuss personnel matters in secret only if the discussion "might lead to" the hiring, discipline or dismissal of an employee or student.

Louisville lawyer Jon Fleischaker, chief author of the law and attorney for the Kentucky Press Association, told The Courier-Journal, “I think it’s bad for the commonwealth. It’s been the law for … 35 years that these kinds of things would be done openly.” (Read more)

In an op-ed distributed to Kentucky newspapers, Mike Farrell, director of the Scripps Howard First Amendment Center at the University of Kentucky, writes "Kentuckians ought to be asking their state legislators why they are more concerned with protecting school board members and superintendents than watching out for the rights and interests of taxpayers."

On its opinion page, The State Journal of Frankfort has a strong editorial and cartoon, but the online version is available only to subscribers. "This bill is a big step backward for the open conduct of public business," the editorial says. "Boards and superintendents should simply get used to the inconvenience of honesty in public places."

Susie Laun of The Advocate-Messenger in Danville has a story in which several school officials in the area say the legislation "will allow evaluations to go back to what boards used to do." They argue it would make the evaluations more thorough, comfortable and productive.

Good government measure finally moves ahead

A dispute between the two houses of the Kentucky General Assembly apparently has been settled, paving the way for passage of legislation that will require two state government associations to open their operations to the public.

The House of Representatives on Friday approved language that would make the Kentucky League of Cities and the Kentucky Association of Counties subject to open records and open meetings laws, give their boards a code of ethics and allow the state auditor to review their books, according to the Lexington Herald-Leader. The bill also would require the organizations to post their expenditures online and adopt policies on pay and bids.

Passage was delayed by wrangling between the two houses. Similar bills were introduced by Sen. Damon Thayer, R-Georgetown, and Rep. Arnold Simpson, D-Covington. Simpson told the Lexington Herald-Leader that state Auditor Crit Luallen had suggested most of the provisions of the legislation. Each house had passed a version of the bill, but then the process stalled. The House passed a version 94-0 on Friday, and the Senate is expected to go along.

Reporting by the newspaper during the past year uncovered extravagant spending by officials of the two agencies. The revelations led to the resignations of both executive directors, scathing audit reports by Luallen, and calls for reform by legislators and local officials.

The League of Cities and Association of Counties are funded by dues and insurance premiums paid by local governments. The bill would make clear that such groups are subject to open records and open meetings laws, with certain exceptions for their insurance businesses.

(Read more)

Bill would allow school boards to evaluate superintendents in closed meetings

School boards could evaluate superintendents behind closed doors, under a bill the Kentucky House approved today 67-29. Senate Bill 178 amends KRS 156.557 to require "any preliminary discussions relating to the evaluation of the superintendent by the board or between the board and the superintendent prior to the summative evaluation shall be conducted in closed session." Evaluations would still be presented in an open meeting. The bill, which goes back to the Senate for approval of an unrelated amendment, would reverse recent attorney-general and court decisions.

During the House Education Committee meeting Tuesday, Sara Call, a member of the Frankfort Independent Board of Education, testified her board had twice held closed-door evaluations with the superintendent, which was a violation of current state law, and said superintendent evaluation needed to be conducted in a closed meeting to allow for 'frank, honest and sometimes painful' conversations. "It’s sometimes difficult to be totally honest in front of the press," she told the committee, Stephenie Steitzer of The Courier-Journal reported.

The Kentucky Press Association has voiced strong disapproval of the bill, arguing the evaluation process of the highest-ranking school system employee should be done in open. "We strongly, strongly recommend that you do not pass this bill," Ashley Pack, general counsel for KPA, told the committee.

Applications for business licenses ruled public

The state Court of Appeals has ruled that the Kenton County Fiscal Court violated the Open Records Act when it denied a records request from The Kentucky Enquirer.

In a March 12 decision, the court said the fiscal court interpreted a section of the law too broadly when it denied the newspaper access to an occupational-license application for a restaurant in Crescent Springs. In Kenton County Fiscal Court v. Kentucky Enquirer, 2010 WL 890012 (Ky.App.), the court adopted the reasoning in a line of opinions of the state attorney general's office recognizing that "it is in the public interest to know what businesses and professions have been licensed to exist and operate within the boundaries of the governmental unit."

The court concluded that "it is incumbent on Kenton County to disclose any and all information appearing upon the application as it relates to what professions or businesses are licensed to operate and which does not reveal the affairs of any person or affairs of the business, and to redact the information which does."

Enquirer reporter Jim Hannah asked Oct. 17, 2007, for a copy of the application of Empire Buffet, and the county denied it. The attorney feneral ruled that December that the county's position "reflects a fundamental misconception that records are presumed to be closed unless expressly declared by the legislature or the courts to be open, indeed, that the public has the burden of proving that a record is open," and that the fiscal court was interpreting the law too broadly so "as to authorize blanket nondisclosure of applications for business licenses." That ruling was upheld in Kenton Circuit Court and now by the Court of Appeals.

Butler County appeals open-meetings decision

The Butler County Fiscal Court has voted to appeal an open-meetings decision of the attorney general to Butler Circuit Court, according to the Bowling Green Daily News. The decision is 10-OMD-043, issued March 3.

The attorney general's office agreed with Robert D. Cron, a candidate for county judge-executive, that magistrates of the fiscal court violated the state Open Meetings Law by meeting with the county sheriff with less than a quorum to discuss the budget for his office. The attorney general said this violated a section of the Open Meetings Act written to prohibit just such meetings. These closed-door series of secret meetings deprived the public of any information that was discussed regarding policy, operations, salaries, new hirings or a host of other issues related to the operated of the sheriff's department.

In ruling against the fiscal court, the attorney general's office said everyone in the county has a compelling interest in ensuring that the sheriff has enough money to enforce the law countywide, and:

Contrary to the Fiscal Court’s view, the purpose of the Open Meetings Act is not only to prohibit decision makers from making decisions that affect the entire community "in ‘back rooms’ outside the eye of the public," but also "to prevent the decision makers from having discussions of public issues” critical to the broad public interest outside the eye of the public."

This is not the first time the Butler County Fiscal Court has disregarded its obligation to the law and to the citizens of the county by holding secret meetings. A year ago, the attorney general found that the fiscal court's finance committee had violated the open meetings law by not giving public notice of those meetings. A citizen also said a series of meetings had been held to avoid a public meeting. That is opinion 09-OMD-014, issued Jan. 26, 2009.

The law states, "Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section," which provides that “All meetings of a quorum of the members of any 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."

The Bowling Green newspaper said in an editorial, "Elected officials in Butler County should back down on this appeal. It is clear they were holding secret meetings. They should also remember they work for their constituents, the taxpayers who pay their salaries, and it is not only appropriate to hold open meetings so they can follow the business of the county, it is the law."

UPDATE, April 9: The appeal has been filed, as a lawsuit against Cron, who is being defended by Louisville lawyer Jon Fleischaker, chief author of the open meetings law, Andrew Thomason reports for the Daily News.

Louisville SPJ hosting session on freedom-of-information issues; register by March 10

The Louisville Professional Chapter of the Society of Professional Journalists is hosting a half-day session on the Freedom of Information Act and related issues Saturday, March 13. The event, in partnership with the Institute for Media, Culture and Ethics at Bellarmine University, will be held at Bellarmine's Brown Activity Center from 9 a.m. to noon.

First amendment attorneys Richard Goehler and Monica Dias will present three sessions, according to the SPJ press release. The first will focus on FOIA and open records issues; the second will examine legal issues facing bloggers and other Internet users; and the third will look at recent court decisions on tweeting and blogging inside the courtroom.

The seminar is free for students, $10 for SPJ members and $15 for others. Participants must register by Wednesday, March 10 by contacting Robyn Davis Sekula at robynsekula@sbcglobal.net, or by calling 812-981-8223.