Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Harrodsburg City Commission violated the Open Meetings Act by failing to comply with the requirements of the Act at its February 23, 1999, regular meeting. For the reasons that follow, we conclude that the city commission's actions constituted a violation of the Open Meetings Act.
On February 24, 1999, Advocate-Messenger managing editor John Nelson submitted a written complaint to Carol Dean Walters, Mayor of the City of Harrodsburg, in which he alleged that the commission violated the Open Meetings Act at its February 23 meeting when it went into closed session "to discuss a group of city employees, those working in City Hall, rather than an individual city worker." Mr. Nelson emphasized that KRS 61.810(1)(f) creates an exception to the open meetings requirement "for public agencies to meet in closed session to discuss individual employees, but not a group of workers." He proposed that the commission remedy the violation by announcing "publicly at the commission's next meeting that the commission acted improperly in this matter and will not do so again." Mr. Nelson received no response to his complaint, prompting him to initiate this open meetings appeal.
In a letter to this office dated March 22, 1999, Mayor Walters responded to The Advocate-Messenger's complaint. She provided the following description of the events which precipitated this appeal:
A motion was made "to discuss city hall personnel" . It could have just as easily been "to discuss three individuals who work in City Hall". The press objected because of the motion being in general language rather than more specific. The Commission did discuss three individuals out of the five that work in City Hall. The City has a total of about 95 employees, however, there was no discussion about others or about any general policies affecting them. To have announced the name of any single employee or even the three employees would have been detrimental to the employer-employee relationship.
I believe substance should always be more important than form. The Commission could have gone into closed session and discussed one individual, return to their open meetings and then gone into another closed session and repeated this process for as many individuals as they intended to discuss. But as mentioned at that time, the Commission and others should use common sense as we all try to learn and undertake to follow the appropriate rules. We will continue to conduct the City's business properly.
In closing, Mayor Walters noted that a suggested motion "'to discuss possible discipline of three employees' without mentioning the small group of City Hall employees specifically would have satisfied the statutory requirements, but would have provided far less information than was announced. " Nevertheless, it is under these statutory requirements that we assess the propriety of a public agency's actions, and in our view KRS 61.815(1)(a), 1 coupled with KRS 61.810(1)(f), 2 require the commission to make just such a declaration before going into a closed session.
In 97-OMD-110 this office addressed an almost identical question. There, the agency announced that it was going into closed session to discuss "individual personnel matters." In response to the complainant's argument that it was "required to provide additional information regarding the subject matter to be discussed," the agency maintained that it was only required to give notice of "the general nature of the business to be discussed in the closed session. " The Attorney General rejected the agency's defense, reasoning:
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 93-OMD-49, at page three, and OAG 90-125, at page two.
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.
97-OMD-110, p. 3.
This decision firmly establishes that an agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing, in open session, that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, or the discipline, or the dismissal of an employee or employees of the agency, indicating which of these particular actions is contemplated. The agency is not required to identify, by name, the employee or employees who will be discussed, nor is it restricted to a discussion of one individual employee at a time. Inasmuch as joint action of a group of employees may precipitate joint disciplinary action or dismissal by an employer, we do not believe that the Open Meetings Act restricts agency discussion to a single employee individually or in isolation. To hold otherwise would place unjustifiable impediments on an agency's ability to effectively and efficiently discuss joint misconduct of public employees which might warrant disciplinary action or dismissal.
This decision should not be interpreted as a retreat from the long-standing proposition that an agency cannot go into closed session to discuss general personnel matters. Where, as here, the discussion apparently centers on a nucleus of common fact relating to three employees, it defies logic to require the members of the agency to go into, and emerge from, a closed session three times to discuss each of the employees separately.
In closing, we note that the Harrodsburg City Commission violated KRS 61.846(1), requiring agency response to an open meetings complaint in writing and within three business days, by failing to respond to The Advocate Messenger's complaint. A letter directed to the Attorney General following initiation of an open meetings appeal does not satisfy the statutory requirement found at KRS 61.846(1).
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(5). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.815(1)(a) establishes certain requirements with which an agency must comply before going into a closed session. That statute provides:
(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.
2 KRS 61.810(1)(f) authorizes public agencies to conduct closed session:
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.