LOUISVILLE, Ky. (WDRB) – The Kentucky Board of Education violated the state Open Meetings Act when it discussed amending former Education Commissioner Stephen Pruitt’s contract behind closed doors last month, Attorney General Andy Beshear’s office ruled in an opinion this week.

The opinion, sought by WDRB News in an Open Meetings Act appeal, said that the board’s April 17 executive session should have been confined to discussions that could lead to the appointment, discipline or dismissal of an employee.

The education board emerged from that four-hour closed session with an amended version of Pruitt’s contract that allowed his immediate resignation and 90 days’ pay. Interim Education Commissioner Wayne Lewis was named acting head of the Kentucky Department of Education.

“Based upon the limited but unrefuted information of record, which indicates only that Commissioner Pruitt’s employment contract was discussed and later amended following the closed session at issue, this office concludes that the Board violated the Act in discussing a general personnel matter that exceeded the scope of (state law) during its closed session,” Assistant Attorney General Michelle Harrison wrote in the opinion received by WDRB News on Friday.

KDE spokeswoman Nancy Rodriguez said Kentucky Board of Education members and the agency’s counsel are reviewing the decision. Milton Seymore, chair of the education board, did not immediately respond to a message seeking comment.

Either the state education board or WDRB News can appeal the decision in circuit court. The attorney general’s office can decide whether violations occurred but cannot direct remedies or institute penalties.

WDRB News initially appealed to Seymore April 23, alleging that the April 17 education board meeting violated the Open Meetings Act because he cited an exemption covering confidential talks on litigation in his request for a motion to close the meeting and because the board did not vote once a motion was made and seconded to enter executive session.

The station requested that the board acknowledge violating the Open Meetings Act, void its amendment to Pruitt’s contract, reconvene and take action if desired, and release any records generated by board members in the executive session.

The board – in an April 26 response written by Kevin Brown, an associate commissioner and general counsel at KDE – acknowledged that Seymore referenced the inappropriate statute in his request for a motion to close the meeting but noted that he cited the language of the Open Meetings Act’s personnel exemption.

That citation “constituted a technical violation of Kentucky Open Meetings Act,” Brown wrote.

“The KBE admits that limited violation and apologizes for the error,” he said in the response.

But he denied violating the law when the board did not vote to enter executive session, citing a 2012 attorney general’s opinion that said the Open Meetings Act does not require a particular method of agreeing to close public meetings.

On that point, the attorney general’s office agreed. Harrison wrote that those in the audience were “able to observe a majority of the Board signal its approval by rising and leaving.”

“This office again emphasize that a public agency should, in the interest of clarity and preserving the agency’s record of actions taken, require each member to verbalize their approval of a motion,” the opinion says.

Brown wrote in the April 23 response that the board and KDE “will work together to provide more clarity for the public when KBE enters closed session.”

“Further, the new KBE members will be provided information concerning the Kentucky Open Meetings Act,” he added.

Reach reporter Kevin Wheatley at 502-585-0838 and kwheatley@wdrb.com. Follow him on Twitter @KevinWheatleyKY.

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