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 Daviess County Judge/Executive's Planning and Zoning Citizens Task Force, appointed by Daviess County Judge/Executive Reid Haire "to assist in the review of the Comprehensive Plan and to provide an overview of the Owensboro Metropolitan Planning Commission," violated the Open Meetings Act when it went into closed session at its May 3, 1999, meeting "to discuss sensitive personnel issues." For the reasons that follow, we conclude that the Task Force violated the Open Meetings Act by failing to establish that its actions were authorized under KRS 61.810(1)(f).
On May 5, 1999, Messenger-Inquirer editor Robert Ashley submitted a complaint to James R. Hendrix, Jr., Chairman of the Task Force, in which he alleged that the Task Force's May 3 closed session constituted a violation of the Open Meetings Act. Mr. Ashley proposed that the Task Force remedy this violation by releasing the minutes of the closed meeting, and if minutes were not kept, by releasing "a detailed written statement of what occurred during the meeting, including the names of individuals discussed and what was said." In addition, he asked that the Task Force acknowledge this violation of the Open Meetings Law.
In a response dated May 10, 1999, Judge Haire notified Mr. Ashley that his staff had advised Mr. Hendrix, prior to the May 3 Task Force meeting, that the Task Force could conduct a closed session discussion of specific personnel issues. Having discussed Mr. Ashley's complaint with Mr. Hendrix, Judge Haire expressed his confidence "that very specific issues were discussed which are stated in KRS 61.810(f) [sic] . . .[, and that the Task Force was] entitled to discuss these specific issues in closed session. " Shortly thereafter, the Owensboro Messenger-Inquirer initiated this appeal.
In supplemental responses addressed to this office, Daviess County Attorney Robert M. Kirtley and Mr. Hendrix offered additional support for the decision of the Task Force to conduct a closed session. Mr. Kirtley stated that in his view, and based on authorities previously cited, the Task Force "had a lawful right . . . to go into closed session to discuss personnel matters involving individuals who are subject to the control and authority of the Daviess Fiscal Court." He enclosed a statement from Mr. Hendrix "setting out the basis for the committee going into closed session. " In that statement, Mr. Hendrix explained:
The Task Force has conducted interviews with over one hundred individuals. The letter announcing the appointment of the Task Force mentions the Owensboro Metropolitan Planning Commission (OMPC) as the agency being reviewed. However, very quickly into the interview process, it became very apparent that the review had to be extended to the Office of Daviess County Codes Enforcement (DCCE). In fact, the director of DCCE was invited and did appear at a Task Force public meeting on April 20, 1999. A Messenger-Inquirer reporter was present at this meeting. Also, . . . the four planning and zoning board members appointed by, and under the direct control of, the Daviess County Fiscal Court are included in the OMPC agency being reviewed.
Having had no previous experience with the open meetings law, I, on two separate occasions, requested advice from [Judge Haire's] office as to proper procedures of conducting such meetings, including when, if necessary, a closed session was warranted. I was advised that when, and if, we discussed sensitive personnel issues that could result in the dismissal or discipline of an employee, then, we should conduct such deliberations in closed session.
On May 3, 1999, the Task Force conducted a public meeting, where, after a brief discussion, a motion was made and approved to go into a closed session to discuss sensitive personnel issues. The Task Force discussed personnel who are subject to the direct control of Daviess County Fiscal Court. The Task Force took no votes regarding any person not under the direct control of Daviess County Fiscal Court.
Mr. Hendrix confirmed that it was his belief that the Task Force acted properly. We do not agree.
Fundamental to an analysis of the propriety of a public agency's conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation 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.
In interpreting this provision, Kentucky's courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good,"
E. W. Scripps Co. v. City of Maysville, Ky.App., 750 S.W.2d 450 (1990) cited in
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), and that:
Consequently, the courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings.
Id. "The exceptions to the open meetings laws," the Court concluded, "are not to be used to shield the agency from unwarranted or unpleasant public input, interference or scrutiny." Id. at 924. Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to "open government openly arrived at."
Maurice River Board of Education, v. Maurice River Teachers, 455 A2d 563, 564 (N.J. Super. Ch. 1982) paraphrasing Woodrow Wilson.
KRS 61.810(1)(f) authorizes public agencies to go into a closed session 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 [.]
With specific reference to this provision, commonly referred to as the "personnel exception" to the Open Meetings Act, this office has opined:
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; see also 97-OMD-124; 99-OMD-49. Echoing this view, the Attorney General recently held 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 of the agency, indicating which of these particular actions is contemplated." 99-OMD-49, p. 3.
In OAG 90-125, this office dealt with a closely analogous set of facts. There, the University of Louisville Board of Trustees appointed a committee to study the University's academic standards for student athletes. The committee excluded the public from portions of its meetings on the basis of KRS 61.810(1)(f) (then codified as KRS 61.810(6)), and the local newspaper objected. At page 3 of that opinion, we concluded that because the meetings did not involved the appointment of specific persons by the University or the discipline or dismissal of specific persons employed by or working for the University, the committee's reliance on the cited exception was misplaced.
In the appeal before us, the Planning and Zoning Citizens Task Force was appointed by the Daviess County Judge Executive to review:
1. Process related to inspections and zoning actions
2. Community involvement in decision making
3. Legal requirements versus public perception
4. Customer Service
5. Streamlining county-wide inspection service
6. Recommending goals and objectives for the Comprehensive Plan
To implement this duty, the Task Force was authorized to "participate in the review of the Comprehensive Plan, conduct interviews, analyze current methods of service delivery and current methods of zoning and inspection, " and directed to "present its findings and recommendations to Judge/Executive Haire and the Fiscal Court within 120 days."
In defense of its May 3 closed session, the Task Force maintains that it discussed matters variously described as "specific personnel issues," "personnel matters involving individuals who are subject to the control and authority of the Daviess Fiscal Court," and "sensitive personnel issues [regarding] personnel who are subject to the direct control of the Daviess County Fiscal Court." Based on the authorities cited above, it is apparent that this description of the matters to be discussed in closed session falls short of the requirements set forth at KRS 61.815(1), as construed in Ratliff , above, 1 and that the subject discussed almost certainly "expanded the intended scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Id. at 924. Having closely examined Judge Haire's original denial, as well as the supplemental responses submitted by Mr. Kirtley and Mr. Hendrix, we do not know if the discussion focused on appointment, or discipline, or dismissal; we do not know if one employee was discussed or more than one employee was discussed; and we do not know the agency for which the employee works (other than it is an agency over which the Daviess County Fiscal Court has authority). The latter fact is particularly significant insofar as KRS 61.810(1)(f), interpreted by this office in a manner consistent with the rule of strict construction codified at KRS 61.800, is "severely restricted . . . [and only applies to discussions] which might lead to the appointment, discipline, or dismissal of personnel of that particular agency ." 97-OMD-110, p. 3 (emphasis added).
While it is true, as the Messenger-Inquirer candidly acknowledges, that committees appointed by a public agency for the express purpose of making recommendations relative to the appointment of an employee may properly rely on KRS 61.810(1)(f) to conduct closed session discussions of individuals under consideration, 2 these facts do not exist in this case. The mandate of the Task Force, set forth in the March, 1999, press release issued by the Office of the Daviess County Judge/Executive, is clear and direct, and contains no reference to the authority to make recommendations relative to the appointment, discipline, or dismissal of "individuals who are subject to the control and authority of the Daviess Fiscal court." In the absence of an exception authorizing closed session discussions of "sensitive personnel issues" over which the Task Force has no apparent authority, we must conclude that the Task Force violated the Open Meetings Act at is May 3, 1999, meeting.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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 In Ratliff , the Kentucky Supreme Court held that in addition to stating the specific exception contained in the statute which is relied upon, KRS 61.815 also requires " specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. " Ratliff at 924 (emphasis added).
2 See, for example, Lexington Herald Leader v. University of Kentucky, Ky., 732 S.W.2d 884 (1987).