Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
Open Meetings Decision
This matter comes to the Attorney General as an appeal by Nathaniel S. Green in connection with his complaint against the city of Providence concerning a closed session of a public meeting of the city council.
In a letter to the mayor of the city of Providence, dated June 28, 1997, Mr. Green, a member of the city council, maintained that the mayor and city council violated the Open Meetings Act in connection with a closed session of city council conducted on May 19, 1997. Mr. Green said the stated purpose of the closed session was to discuss "personnel matters" and that he cautioned the mayor to limit the session to only personnel matters. Upon convening the closed session Mr. Green said the mayor discussed at least nine items from a previously prepared list of topics covering a wide variety of municipal matters.
The mayor responded to Mr. Green in a letter dated July 2, 1997, and denied that the city violated the Open Meetings Act in any way. He said the closed session was properly convened pursuant to KRS 61.815 and that the closed session was held without any intent to deliberate or take final action on any matters. The mayor acknowledged that numerous matters were discussed in the closed session but that the Open Meetings Law permits "open discussion" among the members of the council.
Mr. Green's letter of appeal was received by this office on July 23, 1997. He reiterated his objections to what had transpired relative to the closed session at the meeting on May 19, 1997, and discussed his disagreements with statements contained in the mayor's response.
The mayor responded to the letter of appeal stating in part that he and the city have not had an opportunity to respond to Mr. Green's response to the city's denials.
At the outset we would point out that the city is afforded two opportunities to respond to a complaint submitted under the Open Meetings Act which is subsequently appealed to the Attorney General. KRS 61.846(1) requires that the public agency respond in writing to a complaint. In addition, pursuant to 40 KAR 1:030, the Attorney General notifies the public agency that an appeal has been filed and affords the agency an opportunity to "provide the Attorney General with a written response to the issues raised in the complaint." Such a notice was sent to the mayor on July 23, 1997.
In deciding the issues presented by this appeal the statement set forth in KRS 61.800 must be remembered and followed:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formulation 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.
KRS 61.815 sets forth the requirements for conducting a closed session. Among the provisions of that statute are that notice must be given in the open session of the general nature of the business to be discussed in the closed session, the reason for the closed session must be stated and the specific provision of KRS 61.810 authorizing the closed session must be cited. Another provision states that no matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
According to what has been furnished to this office, including a copy of the agenda for the special meeting of May 19, 1997, the purpose of the closed session was "discussion of personnel. " The mayor has conceded that a variety of topics were discussed during the closed session, most of which had nothing to do with personnel matters.
The mayor and the city violated the Open Meetings Act, specifically KRS 61.815, when the council's closed session included topics other than those publicly announced prior to convening the closed session. See 95-OMD-93, copy enclosed, at page three.
The publicly stated purpose of the closed session was "discussion of personnel. " KRS 61.810(1)(f) deals with what a public body can discuss in a closed session relative to personnel. That statute provides that a meeting of a public agency at which public business is discussed or at which any action is taken may be closed for:
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 [.]
A public agency's authority to go into a closed session relative to personnel matters is severely restricted. General personnel matters cannot be discussed in a closed session. The only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline, or dismissal of personnel of that particular agency. See 97-OMD-110 and 94-OMD-103, copies of which are enclosed.
Prior to going into a closed session for one of the specific purposes authorized by KRS 61.810(1)(f), a public agency must state during the regular and open portion of the meeting the general nature of the business to be discussed and the reason for the closed session. While the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal, or disciplinary action, the public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.
The mayor and the city violated the Open Meetings Act, specifically KRS 61.810(1)(f), when the stated reason for going into a closed session was "discussion of personnel. " Since the only personnel matters which can be discussed in a closed session pertain to the possible appointment, discipline, or dismissal of personnel of that particular agency, the public agency should have indicated which of those particular exceptions it was utilizing and why the session was being closed.
A party aggrieved by this decision may challenge it 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.