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 Richmond Board of Ethics violated the Open Meetings Act when it went into closed session during its December 15, 2000, meeting for the purpose of conducting "preliminary inquiry" into allegations against Mayor Ann L. Durham. For the reasons that follow, we find that the Board's actions did not constitute a violation of the Open Meetings Act.
On January 2, 2001, David T. Royse submitted a written complaint to Richmond Board of Ethics Chairman William E. Adams on behalf of his client, The Lexington Herald-Leader Company and reporter Wayne Partridge, in which he challenged the closed session. Citing 99-OMD-94, 97-OMD-124, 97-OMD-110, and 93-OMD-56, Mr. Royse complained that the Board improperly relied on KRS 61.180(l)(f) in conducting closed session discussion, which it characterized as a "preliminary inquiry," insofar as that exception applies only to discussions that might lead to the appointment, discipline, or dismissal of a member of the particular agency. "Since it is undisputed that the Mayor of Richmond is neither an employee nor a member of the Richmond Ethics Board," Mr. Royse asserted, "it is clear that the Ethics Board was not considering the discipline or dismissal of a member or employee of that particular agency, and therefore, KRS 61.810(1)(f) could not apply." (Emphasis in original.) As a means of remedying the alleged violation, Mr. Royse proposed that the Board declare null and void any action taken at the meeting, reconvene in a public meeting to take up all business that was conducted in closed session, publicize any written minutes or notes of the closed session as well as the audiotape recorded during the meeting at the Herald-Leader's request, and issue a statement "evidencing its intent to comply with the Open Meetings Act in the future, and pledg[ing] not to interpret its Ethics Ordinance . . . in a manner that contravenes the Open Meetings Act. "
In a response dated January 10, 2001, Board Chairman William E. Adams denied the allegations contained in Mr. Royse's complaint, maintaining that "preliminary inquiries conducted in accord with Section XIX C of the City of Richmond's Ordinance 94-50 shall be conducted in closed executive session. " Mr. Adams explained:
It is the Board's position that the closed session was justified by the language of KRS 61.810(l)(f) . . . [T]he three individuals named in the complaints which have been considered by the Board in its preliminary inquiries are embraced within the terms of KRS 61.810 as either "employees" (Judge Logue and Ms. Dunn) or as a "member" (Mayor Durham) of the "public agency" (the City of Richmond). If found by the Board of Ethics to have violated the provisions of the City of Richmond's Code of Ethical Conduct . . . it is clear that each is subject to a form of discipline or possible dismissal . . . . As such, any hearing, including a preliminary inquiry, is included within the provisions of KRS 61.810(l)(f).
On this basis, the Board of Ethics refused to implement the proposed remedial measures.
In a supplemental response directed to this office following commencement of The Herald-Leader's appeal, Richmond City Attorney Garrett T. Fowles elaborated on the Board of Ethics' position. Mr. Fowles described the procedure mandated by the ordinance for investigation of a complaint. That procedure consists of a preliminary inquiry aimed at determining whether the complaint is within the Board's jurisdiction, and whether the complaint alleges a "minimal factual basis to constitute a violation." The inquiry is required to be "confidential until a final determination is made by the Board. . ." He then described the disciplinary measures to be applied in the event that an ethics violation was found. With reference to the complaint that gave rise to this appeal, Mr. Fowles explained:
The complaint . . . alleged that the City's Mayor, Honorable Ann L. Durham, had violated the Ordinance by making purchases, on behalf of the City, from various business entities in which she has a fractional ownership interest.
Questioning "whether a hearing and inquiry of the kind here at issue in any way constitutes the 'formation of public policy' to which the Open Meetings law properly has any application at all," Mr. Fowles nevertheless proceeded to a defense of the Board's conduct.
Reaffirming the Board's original position that its preliminary inquiry into the complaint might lead to the discipline or dismissal of an individual employee or member, namely, the Mayor, and therefore falls within the exception codified at KRS 61.810(l)(f), Mr. Fowles amplified on the Board's position that she is an individual employee or member within the meaning of the Act. He observed:
The Attorney General's Office has, as has been pointed out, held that exception (f) "is severely restricted and only applies to discussions which might lead to the appointment, discipline, or dismissal of personnel of that particular agency." Because, the argument of the complainant here goes, the City's mayor is not a member of the City's Board of Ethics, she is not a member to which exception (f) applies. Thoughtful analysis of that position reveals it to be faulty.
It has not been uncommon for the Office of the Attorney General to address exception (f) in the context of a city council meeting. If one follows the complainant's argument to its logical conclusion, then the only time a city council could close its meeting under exception (f) would be when the discipline of a city council member was the agenda, for other city employees are not members of the city council, just as the Mayor here is not a member of the ethics board. The Attorney General, in its past OMD decisions, however, has correctly indicated that the term "member" is not so restrictively defined. Thus, for example, in 93-OMD-49, it was held that:
A city council, then, can quite clearly go into executive session to discuss specific matters of personnel involving any municipal employee, and not simply city council members. Such a holding is only common sense; certainly the privacy concerns of a city council member are entitled to no greater protection than are those of any municipal employee.
The City's ethics board has no employees or other members aside from themselves, and it was created for the purpose of enforcing adherence to strict standards of conduct for every officer and employee of the City. The complainant here adopts the position that only if the Board is conducting a preliminary investigation into a complaint against a board member can it properly go into executive session. Such a position defies common sense, logic, and, perhaps more to the point, the purpose and intent of exception (f).
Although the language expressly saying so has been dropped from exception (f), the section was clearly adopted for purposes of preventing the unwarranted damage to a respondent's reputation which necessarily flows from any disciplinary proceeding regardless of its merit. The provision of the City's Ordinance here at issue has been narrowly drawn to permit the Board to conduct only its preliminary inquiry in closed session. (It is arguable that even the adjudicatory stage of the Board's proceedings could properly be held in closed session under exception (f), but that question, however interesting, is moot because the Ordinance does not provide for it.) The City's mayor, although not a member of the Board, is an officer of the City over which the Board has jurisdiction. Her reputation is as deserving of protection as is that of any other officer or employee of the City, and the Board's preliminary inquiry was properly held in closed session.
Mr. Fowles thus refuted the argument advanced by The Herald Leader. While we reject the notion that an inquiry into the propriety of issuing a complaint against a public officer does not constitute the formation of public policy, and is therefore not subject to the requirements of the Open Meetings Act, we find that Mr. Fowles' analysis of the legal issue raised is otherwise sound.
The recognized necessity of establishing city and county codes of ethics, and the legislative response thereto in 1992, demonstrates that an inquiry by a board of ethics charged with enforcement of the code into allegations of code violations is undeniably public business, and subject to the requirements of the Open Meetings Act. This being said, such an inquiry may be conducted in closed session if authorized under one of the exceptions to the general rule of openness for the public good. It is the opinion of this office that KRS 61.810(l)(f) permits closed session discussion of allegations against the Mayor of the City of Richmond that might result in disciplinary measures being taken against her. Such a closed session must conform in all particulars with the requirements of KRS 61.815(l)(a) through (d), including the requirement that no final action may be taken during the closed session.
Echoing a line of early open meetings opinions, in 94-OMD-63 this office held that KRS 61.810(l)(f), formerly codified as KRS 61.810(6), authorizes a public agency to conduct a closed session discussion to determine what, if any, charges would be brought against an agency employee. That exception permits public agencies to close their meetings 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.
In construing the predecessor exception, the Attorney General observed:
Since the statute uses the words "discussions or hearings" and also uses the term "might lead to," we believe that a closed session can be held on a personnel matter without formal charges being made against the person who is the subject of the session. Such a discussion could be entirely preliminary to deciding either to reject the idea of disciplinary or dismissal action, or could be preliminary to a decision to make formal charges and hold another hearing.
OAG 81-413, p. 2; see also, OAG 84-46 and OAG 81-135.
The Herald-Leader does not contest this interpretation of the "discussions or hearings which might lead to" language that appears in the exception, but instead focuses on whether the Mayor qualifies as an "individual employee, member, or student" of the Richmond Board of Ethics. Relying on 99-OMD-94, mirroring earlier open meetings decisions, Mr. Royse asserts that the Mayor is neither a member nor an employee of the Richmond Board of Ethics, the "particular agency" engaged in the discussion that might lead to disciplinary measures being taken against her, and that KRS 61.810(l)(f) therefore has no application to those discussions. We do not agree.
In an early opinion that has been modified on other grounds by subsequent amendments to the Open Meetings Act, this office reasoned "that to say that 'member' refers only to members of the board would render the use of the term 'member' practically meaningless." OAG 74-497, p. 3. As Mr. Fowles correctly notes, the argument advanced by The Herald Leader that the Board of Ethics could properly invoke KRS 61.810(l)(f) to conduct a closed session discussion only if it were making an inquiry into allegations against one of its own board members, inasmuch as it has no employees, defies logic. The Board of Ethics acts in a quasi-adjudicative capacity in reviewing allegations of unethical conduct, and its jurisdiction extends both by statute and ordinance, to elected officials and employees of the city, including the Mayor. Acting in this capacity, the Board may discuss in closed session whether the allegations state a minimal factual basis to constitute a violation, and a complaint should issue. Clearly, such discussions might lead to the imposition of discipline on the Mayor, regardless of whether she is characterized as a member or employee. Any other interpretation of the exception elevates form over substance.
The decisions upon which The Herald-Leader relies do not alter this conclusion. Although they recited the language upon which Mr. Royse relies relative to discussions which might lead to the appointment, discipline, or dismissal of a member of a particular agency, 97-OMD-124 and 97-OMD-110 1 did not turn on the issue of whether the personnel matter before the agency involved a member or employee of that particular agency, but instead on the agency's failure to state whether the personnel matter involved appointment, discipline, or dismissal. Only in 99-OMD-94 did resolution of the appeal turn on this issue, and there the agency had no authority under its executive charter to appoint, discipline, or dismiss individuals subject to the control of the agency it served.
This is not the case in the appeal before us. By virtue of both ordinance and statute, the Board of Ethics is authorized to discipline, dismiss, or remove employees and officers of the City of Richmond, including the Mayor. While the Board must observe the formalities for conducting a closed session, pursuant to KRS 61.815(l) (a) through (d), and cannot take final action on the decision to issue a complaint in closed session, we conclude that under authority of KRS 61.810(l)(f) it can discuss in closed session whether a minimal factual basis constituting a violation is stated.
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.
David T. Royse201 East Main streetSuite 1000Lexington, KY 40507-1380
Garrett FowlesRichmond City AttorneyP.O. Box 250Richmond, KY 40476-0250
William E. AdamsChairman, Ethics BoardP.O. Box 250Richmond, KY 40476-0250
Footnotes
Footnotes
1 93-OMD-56, upon which The Herald Leader also relies, is inapposite, dealing with the exception codified at KRS 61.810(l)(b) rather than KRS 61.810(l)(f).
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