Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This consolidated open meetings and open records appeal presents three questions for review by the Attorney General. They are:
1. Whether the Hopkins County Fiscal Court violated the Open Meetings Act when it went into closed session at its November 10, 1999, regular meeting for the stated purpose of discussing personnel matters;
2. Whether the Hopkins County Fiscal Court violated the Open Records Act by refusing to disclose records supporting a reimbursement claim submitted by a county employee;
3. Whether the written response issued by the Hopkins County Fiscal Court to WFMW-WKTG Radio's open meetings complaint and open records request was procedurally deficient?
We conclude that each of these questions must be answered affirmatively, and that accordingly the Hopkins County Fiscal Court's actions constituted violations of both the Open Meetings and Open Records Act.
On November 12, 1999, WFMW-WKTG Radio news director Chris Gardner submitted a written complaint to Hopkins County Judge Executive Richard Frymire in which he alleged that the Hopkins County Fiscal Court violated the Open Meetings Act at its November 10 regular meeting when its members discussed payment of a claim for reimbursement made by the county's public works director, Roy Day, in a closed session. Mr. Gardner explained:
After the court had moved and seconded a motion to pay the sum of $ 891.64, a request was then made to go into closed session for the purpose of personnel discussions. At that point the motion and second to pay the claim was withdrawn.
Members of the public and media were then obliged to leave the meeting room, and a majority of the court continued the meeting in closed session.
After approximately one hour in closed session, the court reconvened. Without further public discussion about the claim, a motion was made and seconded to adjust the claim to the amount of $ 353.50. The motion then carried on a voice vote.
During the closed meeting discussion, County Treasurer Cindy Jones was observed entering the room carrying documents she had removed from her office.
Mr. Gardner argued that the apparent "purpose of the closed meeting was to discuss the amount and validity of the claim," and that such a discussion does not "fall within the scope of the personnel exception. . . ." 1 He proposed that the fiscal court remedy the violation by discussing, "at the next regular fiscal court meeting, the reasons for amending the claim for payment." In addition to his open meetings complaint, Mr. Gardner requested access to all documents in the county's possession that relate to this claim, and the court's decision to modify the amount sought.
In a letter dated November 22, 1999, Judge Frymire responded to Mr. Gardner's meetings complaint and records request, advising him as follows:
Upon review of the pertinent statute, it is my judgment and opinion that the meeting in closed session was proper.
With respect to Mr. Gardner's request for records supporting the claim for reimbursement, Judge Frymire indicated that the fiscal court "speaks through its minutes, " and that he was welcomed to "review the minutes of the action taken by the Fiscal Court in regard for reasons for amending any claim for payment." This appeal followed.
In a supplemental response directed to this office, Judge Frymire elaborated on the Hopkins County Fiscal Court's position relative to Mr. Gardner's appeal. He explained:
The central issue to any complaint is whether or not the purpose of the closed meeting was allowed by Kentucky statute. The seven members of the Hopkins Fiscal Court, for the most part, have attended training sessions involving the Kentucky Open Meetings Law. Two magistrates who had attended those meetings and are well versed in the requirements and conditions for going into a closed session moved and seconded that the Court go into closed session to discuss a "personnel matter". The motion was adopted. Upon going into closed session, it was my duty as the presiding officer to ascertain whether or not the statutory threshold requirements were met. Upon hearing the purpose for the closed meeting, it was my judgment that the requirement of the statute was met.
No vote was taken. No minutes were maintained.
On the issue of access to records relating to the reimbursement claim, Judge Frymire stated:
Mr. Gardner's request to inspect documents pertaining to the claim of Roy Day may be fulfilled by examining those documents in the office of the County Treasurer. These documents were previously obtained by the Madisonville Messenger . A news article using this information appeared several weeks ago in The Messenger . I do not personally know whether the documents obtained by The Messenger were the same ones the County Treasurer carried into the meeting room while the Court was in closed session. The County Treasurer did not share or produce any documents with the Fiscal Court at that time and place.
We believe this matter to be moot since Mr. Gardner acknowledges that he has been provided with documents from the County Treasurer's office. We emphasize that no documents were provided to the Court at that meeting.
In closing, Judge Frymire offered a lengthy explanation for the Hopkins County Fiscal Court's failure to respond to Mr. Gardner in a timely fashion, concluding that the fiscal court "could not respond in the designated time period with [sic] compromising previously scheduled work." He expressed the view that the three day response time was "too strict and does not provide a reasonable time in which to respond."
We find that the actions of the Hopkins County Fiscal Court constituted procedural and substantive violations of both the Open Meetings and Open Records Act. In our view, the weight of the evidence submitted supports Mr. Gardner's claim that the fiscal court violated the Open Meetings Act when it improperly discussed payment of an employee's claim for reimbursement of expenses under the exception for "discussions . . . which might lead to the appointment, discipline, or dismissal of an individual employee. . . ." KRS 61.810(1)(f). Judge Frymire does not dispute that the reimbursement claim was discussed in closed session, and the statements of the magistrates and county attorney confirm that the claim was discussed. In addition, we find that the fiscal court violated the Open Records Act when it withheld nonexempt public records related to the employee's claim for reimbursement. This violation was, however, subsequently mitigated by the disclosure of the records to Mr. Gardner by the county treasurer. Finally, we find that the fiscal court's response to Mr. Gardner's combined meetings complaint and records request was procedurally deficient insofar as it failed to cite a statutory basis for the fiscal court's position, and a brief supporting explanation. KRS 61.846(1); KRS 61.880(1).
We begin with the proposition that has become axiomatic in this area of law, and that 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 has declared:
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 general personnel 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(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. 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).
The Hopkins County Fiscal Court violated the Open Meetings Act when it failed to properly invoke KRS 61.810(1)(f) by announcing in open session that it intended to discuss either the appointment, or the discipline, or the dismissal of an individual employee, and by exceeding the intended scope of this exemption to discuss reduction of a claim by a county employee for reimbursement of expenses. Mr. Gardner asserts, and the fiscal court does not refute, that "other personnel discussions" were conducted during the closed session. This action contravenes the requirement that discussions be limited to appointment, discipline, or dismissal of an individual employee. See 97-OMD-124 (holding that city violated Open Meetings Act when it discussed at least nine unrelated personnel matters in closed session without identifying the nature of the action discussed). Mr. Gardner asserts, and the fiscal court does not refute, that Mr. Day's expense reimbursement claim was discussed in closed session. Clearly, discussion of this subject was not authorized under KRS 61.810(1)(f). See 97-OMD-124 (holding that city violated Open Meetings act by discussing matters other than appointment, discipline, or dismissal of city employee under the guise of KRS 61.810(1)(f). Finally, Mr. Gardner asserts, and the fiscal court does not refute, that even if such discussion were permissible, notice was not given in open session of the court's intention to discuss the reimbursement claim. This omission contravenes the requirement that matters discussed in closed session be restricted to those publicly announced prior to convening the session. KRS 61.815(1)(d) and 97-OMD-124 (holding that city violated the Open Meetings Act when discussion included topics other than those publicly announced in open session) . The fact that no final action was taken in closed session does not mitigate these violations. Bearing in mind that the General Assembly has declared 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," Preamble to HB 100 (1974), we conclude that the Hopkins County Fiscal Court violated the Open Meetings Act at its November 12 regular meeting.
Turning to Mr. Gardner's open records request for access to documents relating to Mr. Day's reimbursement claim, and the fiscal court's decision to modify the claim, we find that the Hopkins County Fiscal Court improperly denied the request. This office has long recognized that "amounts paid from public coffers are perhaps uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies . . ." along with records supporting claims for public monies. OAG 90-30, p. 3; OAG 90-19, p. 1 ("travel expense information [of public employees] is subject to public scrutiny"); 95-ORD-18 ("travel records, invoices, bills, and expense records of a public employee are generally not shielded from disclosure . . ." . Simply stated, "Wherever public funds go, public interest follows." 95-ORD-65, p. 5. Although the minutes of the fiscal court's meeting at which final action on the reimbursement claim was taken are unquestionably public records, Mr. Gardner did not request access to them exclusively, but to all documents in the county's possession that relate to the claim, and the decision to modify the amount sought. Disclosure of the minutes of the meeting did not relieve the Hopkins County Fiscal Court of its duty under the Open Records Law to disclose all other documents relating to the claim and its decision to reduce the amount "paid from public coffers." As noted, this violation was mitigated by the subsequent disclosure to Mr. Gardner of at least some of these records by the county treasurer.
In closing, we note that the response issued by the Hopkins County Fiscal Court did not satisfy the procedural requirements of either KRS 61.846(1), relating to agency response to an open meetings complaint, or KRS 61.880(1), relating to agency response to an open records request. Those statutes provide, in relevant part:
KRS 61.846. Enforcement by administrative procedure--
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. 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.
KRS 61.880 Denial of inspection--
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The fiscal court's response was not issued within three business days. The response did not cite the statutory bases for the fiscal court's denial of Mr. Gardner's meetings complaint and records request, or offer any supporting explanation. In
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals declared, "The language of the statute directing agency action is exact." Each statute requires the agency to provide "particular and detailed information," and "limited and perfunctory response[s]" do not "even remotely comply with the requirements of the Act[s]." Id. We urge the Hopkins County Fiscal Court to review the cited provisions to insure that future responses conform to the Open Meetings and Open Records Acts. While we appreciate the fiscal court's frustrations with the time constraints imposed by the statutes, we are not empowered to enlarge the time for agency response, or to alter or amend the laws in any way.
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 his letter of appeal, Mr. Gardner stated that in a conversation during the meeting's recess, magistrates Karol Welsh, Patricia Hawkins, Donald Hawkins, Dick Purdy, and Paul Hamilton admitted that the claim was discussed during the closed session, along with "other personnel discussions." Continuing, he noted that the County Attorney had expressed the belief that since the fiscal court had taken action on the claim in open session, the court had fully complied with the law.