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 Stamping Ground City Commission violated the Open Meetings Act when it went into two separate closed sessions, during its July 12, 1999, meeting, to discuss personnel matters. For the reasons that follow, we conclude that both closed sessions constituted violations of the Act.
On July 20, 1999, Mike Scogin, of the Georgetown News-Graphic , submitted a written complaint to Mayor Shirley Kettenring in which he challenged the two closed sessions. He stated that it was his understanding that during the first closed session "two letters, including one to [city clerk] Virginia Miller, was [sic] presented to the commission with each member signing the letters" in violation of KRS 61.810. Mr. Scogin also protested the second closed session during the course of which the commission discussed the resignation of the city clerk. Mr. Scogin proposed that the commission remedy these violations by "publicly acknowledging in a letter to the editor of this newspaper and also at he next regular session of the city commission that [the commission] violated the Kentucky Open Meetings Law . . . [and] that [the commission] publicly pledge to carefully follow the law in the future."
In a response dated July 22, 1999, Mayor Kettenring advised Mr. Scogin as follows:
We cannot respond to the charges listed at this time. We feel any information regarding personnel matters are protected by confidentiality and will not comment further until so advised by our city attorney. Our attorney has been tied up on other matters since the receipt of your letter and I am entering the Georgetown Hospital in the morning.
In closing, Mayor Kettenring indicated that the city would "respond to the charges as soon as it is determined they merit a response." This appeal followed.
In a supplemental response directed to this office, and received after commencement of Mr. Scogin's open meetings appeal, Joseph M. Hoffman, Stamping Ground city attorney, elaborated on the commission's position. He explained:
The first Executive session was held for a personnel matter. During that session a letter and a memorandum addressed to a City employee were presented to, and signed, by [sic] the four City Commissioners, as well as the Mayor. These dealt with matters pertaining to the employee, and were thus deemed confidential and inappropriate for open session.
The dilemma faced by the City Commission is the balancing of its employees' legitimate expectation of privacy and confidentiality regarding his or her job and job performance and the Open Meetings Laws. The City felt that the privacy rights of its employees were part of the exception to the Open Meetings Laws.
Following the resumption of the Open Session for a period of time, Mayor Kettenring excused herself from the meeting due to health concerns. The meeting continued and was nearing its end when the City Clerk abruptly announced her resignation. All in attendance were quite surprised. The City Clerk asked that the remaining Commissioners adjourn to Executive Session in order to discuss her resignation. Several times the City Clerk joined the Commissioners in Executive Session to discuss her resignation.
Again, the City Commissioners were concerned about the individual employee's right to privacy, particularly since that employee had specifically asked that the Commissioners go into Executive Session.
Mr. Hoffman emphasized that with respect to both closed sessions, the commission "acted in sincere good faith believing it correctly balanced the individual's right of privacy with the statutory requirements."
It is the opinion of this office that it is not for the Stamping Ground City Commission to attempt to strike the appropriate balance between an employee's right of privacy and the public interest in the formation of public policy. That balance has already been struck by the General Assembly in KRS 61.810(1)(f). Unless the personnel matters to be discussed in closed session relate to the appointment, discipline, or dismissal of an individual employee, those matters must be discussed in open session. If the discussion is, in fact, focused on the appointment, discipline, or dismissal of an employee, it is incumbent on the agency, after invoking the relevant exception, to identify which of these topics will be discussed (that is, either appointment, or discipline, or dismissal), and the agency is foreclosed from taking any final action in that closed session.
We begin with the proposition which has become axiomatic in this area of law, and which is found in the statement of legislative policy codified at KRS 61.800. "The formation of public policy is public business and may not be conducted in secret. " Thus, at KRS 61.810(1), the general Assembly declares:
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]
Recognizing that there are extraordinary circumstances which may warrant a public agency in conducting its business in closed session, the legislature has carved out a number of exceptions to this general rule. Among those meetings excepted are meetings or hearings at which the appointment, discipline, or dismissal of an individual employee, member, or student will be discussed. KRS 61.810(1)(f).
In construing KRS 61.810(1)(f), the Attorney General has observed:
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 echoes an earlier open meetings opinion in which the Attorney General recognized that:
the legislature specifically intended to close discussion only of these three subjects due to the potential for reputational damage. Closed discussions of other matters . . . are expressly precluded by KRS 61.810[(1)(f)] which prohibits the "discussion of generalpersonnel matters in secret. "
OAG 83-415, p. 2 (holding that agency improperly relied on KRS 61.810(1)(f) to conduct closed session discussion of employee's resignation) .
These decisions firmly establish that a public agency complies with the requirements of KRS 61.815(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. Clearly, no other matters may be discussed in the closed session other than those publicly announced, KRS 61.815(1)(d), and no final action may be taken during the closed session. KRS 61.815(1)(c).
To date, the Stamping Ground City Commission has not announced which of these topics were discussed in its first closed session. Mr. Hoffman indicates that it was conducted for the purpose of discussing "a personnel matter." Based on the authorities cited above, this is not a sufficient description of the matter to be discussed, and therefore violates the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f). Moreover, Mr. Hoffman acknowledges that in the course of the closed session the Mayor and four commissioners signed off on a letter and memorandum addressed to a city employee. This act constituted a violation of KRS 61.815(1)(c), prohibiting final action in closed session. Even if an appropriate basis for conducting the closed session had been articulated by the Stamping Ground City Commission, for example, to discuss possible discipline of a city employee, the commission was foreclosed from taking final action in that closed session.
With respect to the second closed session, which was conducted for the purpose of discussing the city clerk's resignation, we find that OAG 83-415 is controlling. As noted, in OAG 83-415 the Attorney General expressly held that a closed session discussion of an employee's resignation was not authorized by KRS 61.810(1)(f), and was therefore improper. We remind the commission that the legislature has determined what subjects concerning an individual employee may be discussed in closed session, and the employee's resignation is not one of them. Thus it is that in the original preamble to the Open Meetings Act, the General Assembly recognized that "the people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know. . . ." 1974 HB 100. The General Assembly, having determined that the discussion of an employee's resignation does not create the same potential for reputational damage as does the discussion of an individual's appointment, or discipline, or dismissal, excluded this topic from KRS 61.810(1)(f). We therefore conclude that the second closed session conducted at the Stamping Ground City Commission's July 12, 1999, meeting was improper, and constituted a violation of the Open Meetings Act.
In closing, we note that the commission's original response to Mr. Scogin's open meetings complaint was deficient. In it, the commission did little more than indefinitely postpone issuance of a substantive response. KRS 61.846(1) provides:
An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
The requirement for agency response is not conditioned upon the meritoriousness of the charges, as Mayor Kettenring suggests, or the availability of the city attorney to offer advice on the matter. We urge the commission to review the cited provision to insure that future responses conform to the Open Meetings Act.
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.