Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by Henry B. Piper, Esq., on behalf of his client, Thomas Williamson, concerning a closed portion of a meeting of the Inez City Commission on May 12, 1994.
In a letter to the mayor of the city, dated August 10, 1994, Mr. Piper, on behalf of Mr. Williamson, maintained that the city commission violated the Open Meetings Act. Mr. Piper said the commission met in a regularly scheduled meeting on May 12, 1994, and considered various agenda items but the agenda did not include anything relative to Mr. Williamson's employment with the city. At some point the commission voted to go into a closed or executive session but, according to Mr. Piper, nothing was said regarding the general nature of the matters to be discussed or the reason for the closed session.
Mr. Piper stated that Mr. Williamson was never notified that the commission was considering the termination of his employment. In addition, Mr. Piper referred to a special meeting of the commission held on May 15, 1994, or May 16, 1994, and he maintained no notice of this meeting was given to the local newspapers.
Mr. Piper then proceeded to discuss what he maintained were the four violations of the Open Meetings Act committed by the city. First, the commission failed to notify Mr. Williamson relative to the closed session pertaining to the discussion of Mr. Williamson's dismissal. The case of Reed v. City of Richmond, Ky.App., 582 S.W.2d 651 (1979) was cited in support of Mr. Piper's position. Second, the commission failed to follow required procedures relative to the conducting of a closed session. Third, the commission made the final decision to dismiss Mr. Williamson during the closed session. Fourth, the commission did not follow the statutory procedures pertaining to the holding of a special meeting.
J. Thomas Hardin, Esq., responded on behalf of the city to Mr. Piper in a letter dated September 14, 1994. He advised Mr. Piper that all meetings "were conducted in accordance with Kentucky law." He did state that "Tommy Williamson was dismissed as an employee on May 12, 1994 in executive session. " He noted that personnel discussions regarding dismissal are excepted from the requirements of the Open Meetings Act.
Mr. Piper's letter of appeal on behalf of Mr. Williamson was received by this office on September 20, 1994. In that letter he took exception to the positions taken by the city and he has requested that the matter be reviewed by the Attorney General.
KRS 61.810 in part sets forth the exceptions to open and public meetings and among those exceptions is KRS 61.810(1)(f), formerly codified as KRS 61.810(6), which permits a closed session in regard to:
Discussions or hearings 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[.]
The case cited by Mr. Piper, Reed v. City of Richmond, Ky.App., 582 S.W.2d 651 (1979), involved a situation where police officers were subjected to disciplinary procedures and a hearing had been scheduled relative to the accusations made against them. The court held in part that the city acted improperly when it refused to grant the police officers' request that the hearing be open and public.
Rather than a scheduled hearing from which Mr. Williamson was excluded, the situation involved in this appeal concerned a discussion by the city commission of the dismissal of a city employee. Police officers in a city such as Richmond cannot be reprimanded, dismissed, or suspended unless charges are preferred and a hearing conducted. See KRS 95.450(1).
We do not know what the personnel policies are for the city of Inez but many employees in the smaller cities in the Commonwealth are "at will" employees who serve at the discretion of the appointing authority. Unless there are local enactments providing for dismissal for cause and after a hearing, the employee has no right to notice and a hearing prior to his dismissal.
The Open Meetings Act does not give municipal employees the right to notice and a hearing in a termination proceeding. It only gives that employee the right to an open and public hearing if a hearing has been scheduled by the municipal authorities concerning the dismissal. The Open Meetings Act does not require notice and a hearing when the city announces it is going into a closed session to discuss the possible dismissal of a particular employee.
Since this is an appeal under the Open Meetings Act the Attorney General is limited to deciding whether the city violated the provisions of that particular Act. See KRS 61.846(2). We cannot decide whether the procedures relative to the termination of a municipal employee were properly interpreted and administered.
It is the decision of the Attorney General that a city may properly invoke KRS 61.810(1)(f) to go into a closed or executive session to discuss the possible dismissal of a particular employee. That specific statute does not require that the affected employee be given notice of the discussion or an opportunity to attend that discussion. A discussion by the city governing body is not the same as a hearing which has been scheduled to hear charges which have been brought against an employee.
In regard to conducting a closed session, KRS 61.815(1) requires that notice be given in the regular open meeting of the general nature of the business to be discussed in the closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. A closed session may be held only after a motion is made and carried by a majority vote in an open and public session.
Thus in the matter under consideration the city would have been required to announce in the open and public portion of its meeting that it was invoking the provisions of KRS 61.810(1)(f) to go into a closed session to discuss the possible termination of a particular municipal employee. To the extent that the city did not follow the provisions of KRS 61.815(1), it violated the Open Meetings Act.
KRS 61.815(1)(c) specifically states that no final action may be taken in a closed session.
Thus, the city commission, after discussing the matter of the termination of Mr. Williamson in a closed session, would have been required to go back into an open and public session and at that time make its decision to terminate the employment of Mr. Williamson. To the extent that the city failed to follow the provisions of KRS 61.815(1)(c), it violated the Open Meetings Act.
KRS 61.823 sets forth the procedures which must be followed if a special meeting is to be properly held. In part written notice of the date, time, and place of the special meeting and the agenda must be delivered at least twenty-four hours before the special meeting to all members of the public agency and to all media organizations which have filed a request to be notified of special meetings. In addition, written notice shall be posted in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the public agency. The posting must be done at least twenty-four hours before the special meeting.
Thus, to the extent that the city failed to follow the requirement of KRS 61.823 pertaining to special meetings, it violated the Open Meetings Act.
Either party to this appeal may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4((a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.