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 Russell Springs City Commission violated the Open Meetings Act by conducting an unauthorized closed session discussion of general personnel matters at its March 9, 2000, regular meeting. For the reasons that follow, we find that to the extent that the closed session discussion went beyond a discussion of whether discipline should be imposed on specific police personnel who participated in the raid that took place twenty-five miles from Russell Springs, it was not authorized under KRS 61.810(1)(f) and constituted a violation of the Open Meetings Act.
On April 13, 2000, Times Journal editor Angela Geralds submitted a written complaint to Joel Wolford, Mayor of the City of Russell Springs, in which she alleged that the commission violated the Open Meetings Act at its March 9 meeting when it went into closed session to discuss an "executive order pertaining to the police department. . . ." It was Ms. Geralds's position that KRS 61.810(1)(f) does not authorize such closed session discussions of general personnel matters. She proposed that the commission remedy the violation by formal acknowledgement, by nullifying "any and all action taken as a result of said meeting," and by "showing due diligence in the future when entering executive session to ensure only proper and legal matters be discussed. . . ." Ms. Geralds received no response to her complaint, prompting her to initiate this open meetings appeal.
In a letter to this office dated April 26, 2000, Mayor Wolford responded to The Times Journal's complaint. He explained:
The purpose of the executive session was to discuss a police personnel matter, more specifically, to discuss the personnel involved in a police raid, which took place 25 miles from the city of Russell Springs, whether their actions were in keeping with our policy, and what disciplinary measures, if any, needed to be taken.
I, as mayor, did not issue the executive order in the closed session. Nothing was voted on in the closed session. I merely read the executive order, which I had prepared, in open session and called for a vote by the commission which was unanimously passed in favor of the order.
Mayor Wolford noted, in closing, that Russell Springs City Attorney Robert L. Bertram responded to Ms. Geralds's complaint in a letter dated April 19, a copy of which he enclosed. Based on Mayor Wolford's description of the closed session discussion, we find that the city commission improperly relied on KRS 61.810(1)(f) in discussing, however briefly, the executive order that was ultimately adopted in open session.
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 interpreting these provisions, 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.
By its express terms, 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.
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 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, in 99-OMD-49 the Attorney General found that the Open Meetings Act does not restrict agency discussion to a single employee individually or in isolation. There, we opined that 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. At page 4 of 99-OMD-49, we noted:
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 [several] employees, it defies logic to require the members of the agency to go into, and emerge from, a closed session [several] times to discuss each of the employees separately.
99-OMD-49, p. 4.
Applying these principles to the appeal before us, we find that any closed session discussion by the commission that was not restricted to the need to impose discipline on the specific police personnel who participated in the raid some twenty-five miles from the City of Russell Springs was not authorized by KRS 61.820(1)(f) and therefore constituted a violation of the Open Meetings Act. No matter how brief, discussion relating to the executive order was not the proper subject for an executive session. The fact that no final action was taken on the executive order in closed session does not mitigate the violation. The Act prohibits unauthorized closed session discussions as well as final action. Bearing in mind that the General Assembly has declared that the exceptions codified at KRS 61.810 must be strictly construed, and 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," we find that the Russell Springs City Commission violated the Open Meetings Act at its March 9 regular 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.