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 Meade County Fiscal Court violated the Open Meetings Act at its February 23, 2000, special meeting when it went into closed session to discuss personnel matters. For the reasons that follow, we find that the fiscal court violated the Act by failing to establish that its actions were authorized under KRS 61.810(1)(f).
On February 24, 2000, Meade County Messenger editor Pat Bowen submitted a written complaint to Meade County Judge/Executive Mark Brown in which she alleged that the Meade County Fiscal Court violated the Open Meetings Act at its February 23 meeting when the fiscal court discussed personnel issues which are not contemplated by KRS 61.810(1)(f) in a closed session. Ms. Bowen noted that after the fiscal court returned to open session, "a motion was made to approve a new job description, that of code enforcement officer. " It was her position that "[a] new job description . . . would be a general personnel matter" which could not properly be discussed in a closed session.
Ms. Bowen further alleged that the fiscal court hired an applicant for the new position of code enforcement officer immediately after approval of the job description in contravention of the county's administrative code, Section 330.1. As a means of remedying these violations, she proposed that the fiscal court "present[] and discuss[] the new job description in an open, announced court meeting, and publish and select [an applicant] for the position . . . in accordance with the administrative code."
In a response dated February 29, 2000, Meade County Attorney Darren A. Sipes asserted that the closed session discussion was entirely proper. He advised:
Judge-Executive Mark Brown stated before going into closed session that the Fiscal Court was going into closed session concerning discussions that may have led to the appointment, discipline or dismissal of two particular jail employees and a planning and zoning employee. The Judge-Executive may have not stated it in that particular way, but the context should have been clear.
I do not believe any final action was taken on the two jail employees. However, there were discussions which may have led to the dismissal of two particular employees. In addition, there were discussions that led to the appointment of a planning and zoning employee. Correct me if I'm wrong, but the Judge-Executive stated after the closed session that an applicant was approved by the Fiscal Court and hired.
With respect to Ms. Bowen's allegation concerning the procedures employed in hiring the code enforcement officer, Mr. Sipes responded that a new county administrative code is currently being drafted by Judge Brown, and that the administrative code to which she referred "is not in effect, [and] the Fiscal Court does not have to abide by its provisions." In a supplemental response directed to this office after Ms. Bowen initiated her appeal, Judge Brown stated that during the February 23 closed session, "there was no discussion other than me relating to members of the Fiscal Court that I was recommending to them that we approve the job description and hire a part-time employee for the position of Code Enforcement Officer. "
On appeal, Ms. Bowen requests that this office review the actions of the Meade County Fiscal Court in conducting a closed session discussion "of a new job description. " In addition, she requests "an opinion regarding the issue of no valid administrative code," as well as an opinion addressing the procedures employed by the fiscal court in hiring the new code enforcement officer. The latter two questions are beyond the scope of our authority in adjudicating an open meetings appeal pursuant to KRS 61.846(2), and we therefore respectfully decline to render an advisory opinion on the county administrative code, and the procedures employed in hiring a county employee. Our review is confined to the open meetings issue arising form the fiscal court's closed session discussion. Acknowledging the existence of a number of factual inconsistencies in the record before us, we conclude that if, in fact, the fiscal court relied on KRS 61.810(1)(f) in discussing a new job description in a closed session, its reliance on that exception was misplaced.
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) ; OAG 90-125 (holding that university committee appointed to study academic standards for student athletes could not conduct closed session discussion of these matters under authority of KRS 61.810(1)(f)); 94-OMD-103 (holding that closed session discussion of the possible creation of a new position was improper); 97-OMD-80 (holding that discussion of appointment of members to a university presidential search committee could not be conducted in closed session because persons appointed were not employees of the university); 99-OMD-133 (holding that public agency improperly conducted closed session discussion of employee's resignation) ; 99-OMD-221 (holding that employee's claim for reimbursement could not be discussed in closed session) .
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, matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be discussed in closed session, KRS 61.800, 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).
Applying these principles to the appeal before us, we find that the weight of the admittedly conflicting evidence supports Ms. Bowen's argument that the closed session discussion conducted by the fiscal court at its February 23 meeting was not authorized by KRS 61.810(1)(f). In her letter of appeal, Ms. Bowen alleged that the discussion focused on preparing anew job description. In response, County Attorney Sipes asserted that "there were discussions which may have led to the dismissal of two particular [jail] employees . . .[, and] discussions that led to the appointment of a planning and zoning employee." An unverified transcript of the meeting submitted by Ms. Bowen, along with her appeal, contains the following narrative:
Go into meeting, agenda states closed session. States closed session was about jail and planning and zoning personnel issues. Second reading of the Zion Grove project budget amendment. Then Brown announces going into closed session in accordance with KRS 61.810(1)(f). Then. . . .
M. Brown - motion to reconvene. In the closed session we discussed jail personnel, got a situation where because of construction there we had to remove the female prisoners from our jail and therefore we have to make some adjustments on the matron situation, and I will make some recommendations to the court at a later date on how we will handle that until the jail is online. No action taken on that matter. On the matter of the planning and zoning office, I made the recommendation to the court that we create a new position of code enforcement - officer - code enforcement officer - and I will entertain a motion from the court to create that position -
I. Spencer: I'll second it, Judge.
In his supplemental response to Ms. Bowen's appeal, Judge Brown himself maintains that "there was no discussion other than me relating to the members of the Fiscal Court that I was recommending to them that we approve the job description and hire a part-time employee for the position of Code Enforcement Officer. " We must accept Judge Brown's description of the closed session discussion, given the obvious fact that he was present during the discussion and is therefore the best witness to what actually occurred.
This being the case, we find that 94-OMD-103 is controlling. In that decision, we held that a closed session discussion relating to the creation of additional positions that might lead to the employment of an employee was improper. To hold otherwise would have resulted in an expansion of the scope of the exception to include discussions of advertising for the position, salary established for the position, and job duties associated with the position (general personnel matters in which the public has a recognized interest), rather than the qualifications of an individual applicant for the position, the pros and cons of hiring that particular applicant, and that particular applicant's current job situation (matters capable of resulting in reputational damage to an individual if publicly discussed). Because the fiscal court's discussion apparently consisted of recommendations relating to a new job description and the hiring of a part-time employee, rather than the qualifications of an individual applicant, and the pros and cons of hiring him or her, we conclude that the closed session discussion was improper. In short, the purpose underlying the exception is not served when the matters to be discussed do not implicate an individual applicant's reputational interests.
As noted above, because an open meetings appeal is not the appropriate forum within which to resolve disputes relating to the existence of a county administrative code, and the propriety of county hiring practices, we do not address these issues. Our review is confined to the narrow open meetings issues which arose as a consequence of the February 23 meeting, and based on our review of the weight of the evidence presented, we cannot affirm the Meade County Fiscal Court's reliance on KRS 61.810(1)(f) to authorize a closed session discussion of a job description and recommended hiring of a code enforcement officer.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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.