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KDE joins local fight

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School board gets support in keeping evaluations private

By Robin Bass

The state’s top educational organizations – including the Kentucky Department of Education – have placed their support behind the Spencer County School Board’s decision to conduct the superintendent’s evaluation in closed session and are asking the judge to reverse an opinion by the Office of the Attorney General.

“The Office of the Attorney General (OAG) has misinterpreted the Open Meetings Act and reached erroneous legal conclusions which will adversely impact all local boards of education in Kentucky,” said Attorney Michael Owsley in a court document filed last week.

Owsley filed the amicus curiae, or “friend of the court”, brief on behalf of KDE, the Kentucky Board of Education, the Kentucky School Boards Association, and several educational cooperatives which represent many of Kentucky’s school districts. The purpose of this type of brief is to allow an interested person or organization who is not officially part of a lawsuit, to participate in written arguments before the court. Plaintiffs – or in this case, the Spencer County School Board – must give the interested party permission to submit support on their behalf.

At the heart of Owsley’s argument is that the OAG ignored the phrase “which might lead to” in KRS 61.810, which states that school boards are permitted to conduct a closed session if “discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member or student.”

“Anyone attending the open session was aware that the board was going into closed session to evaluate the performance of the superintendent – a discussion which could lead to the discipline or dismissal of that individual,” stated Owsley in the brief. “Until the evaluation is actually conducted, there is no way to determine whether one of those specific actions will be taken. The purpose of the evaluation is, in part, to determine whether discipline or dismissal is warranted.”

Owsley wrote that former Chairman Ronald “Woodie” Cheek would have to be a “mind reader” to anticipate if the superintendent’s evaluations would lead to disciplinary actions or his removal.

Defense attorney Valerie Shannon said she did not think the filing by KDE would have any impact on the court. Shannon represents board member Sandy Clevenger.

“Their brief doesn’t add a lot to the case,” said Shannon. Not only does she believe the document contains no new information, Shannon said it also fails to show how the KDE and other educational organizations are victims of any undue burden by the OAG decision.

“The public should have a pretty big interest in the outcome of this case,” said Shannon.

Events up to now:

School board member Sandy Clevenger has stated in court documents that she and fellow board members were told by Amye Bensenhaver of the OAG during open meetings training that a superintendent evaluation was not a proper topic for closed session. When the board conducted a performance evaluation of Superintendent Chuck Adams in closed session – even after Clevenger’s objections – she filed a complaint with former Chairman Ronald “Woodie” Cheek.

Clevenger said when she did not receive a response from Cheek, she filed a complaint with the Attorney General’s office.

The OAG decided that the Spencer County School Board violated the Open Meetings Act when they met privately to discuss Adams’ yearly evaluation. In response, the school board filed a lawsuit against the Attorney General Jack Conway and fellow board member Sandy Clevenger in September. Since state law prohibits Conway from being named in a suit, Clevenger remains as the only named defendant. The role of Attorney General is to act as an impartial tribunal in open records and open meetings appeals.

Clevenger has been responsible for hiring her own legal defense attorneys, while the school board is utilizing the district’s lawyer who is paid by taxpayers. The Kentucky Association of School Administrators has been reported as offering to help the local school board with legal fees.

Superintendent Adams has said that the issue is about federal privacy laws for superintendents, not about someone’s opinion in the Attorney General’s office. He said that conducting evaluations in public could make districts across the state open to defamation or slander lawsuits depending on what is said by board members during the evaluations.

That’s a risk David Thompson is hoping school districts are willing to take. As executive director of the Kentucky Press Association, Thompson said taxpayers need to know how well their money is being spent on individuals such as superintendents.

Spencer County Circuit Court Judge Charles Hickman is scheduled to make a ruling whether to permit the amicus curiae brief January 22 at 10:30 a.m. He is expected to rule on a summary judgement motion February 5 at 10:30 a.m.