Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Russell Primary School Site-Based Council violated the Open Meetings Act by conducting closed session discussions of its extended school services program at meetings held on unspecified dates. For the reasons that follow, we find that although the Council violated the Act in failing to respond to the open meetings complaint that spawned this appeal, the record does not support the allegation of an improperly conducted closed session contained in that complaint.
On December 13, 2001, Thomas Stone submitted a complaint to Principal Deneen Zimmerman, presiding officer of the Russell Primary School Site-Based Council, in which he expressed the view that "the SBDM was wrong when they [sic] went into closed session to 'discuss hiring ESS [extended school services] teachers. '" He observed:
704 KAR 3:390 mandates the method for hiring ESS teachers. The people given ESS assignments were largely Council members. No one that did not already work at RPS [Russell Primary School] applied. Since no one could have been hired this should have been done in open session.
As a means of remedying this alleged violation, Mr. Stone proposed that "the action taken be voided and procedures followed so that all teachers in the district get equal access to the program." Having received no response to his complaint, Mr. Stone initiated this appeal on December 18, 2001. 1
Upon receipt of this office's notification of Mr. Stone's open meetings appeal, Ms. Zimmerman responded in writing to his allegations. She provided this office with copies of the Council's minutes and agenda from October, explaining:
We had a regular meeting and a special meeting. At the special meeting, consultation was on the agenda but it never happened. We started our Extended School Services program on October 23, 2001, we never went into closed session at either of these meetings as this [sic] reflected in the minutes.
Ms. Zimmerman offered no explanation for the Council's failure to respond to Mr. Stone' complaint.
We have reviewed the record on appeal, including the agenda and minutes of the Council's October 2 and October 10 meetings, and conclude that the Russell Primary School Site-Based Council violated KRS 61.846(1) by failing to respond in writing, and within three business days, to Mr. Stone's complaint. However, based upon the record provided to us on appeal we are unable to conclude that the Council violated KRS 61.810(1) by improperly conducting a closed session to discuss hiring Extended School Service teachers as alleged by Mr. Stone. Although teachers were apparently hired for the program, Mr. Stone failed to furnish us with the dates of any meetings where the Council improperly conducted a closed session to discuss such hirings. In addition, the Council agenda and minutes for the meetings immediately preceding implementation of the program do not reflect any improperly conducted closed sessions. Finally, Ms. Zimmerman stated in her response that the Council never went into closed session at either of the meetings. The evidentiary record is therefore insufficient to support the claimed violation.
Resolution of the legal issues in this appeal turns on an interpretation of KRS 61.810(1):
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, 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. "[T]he 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.
Although he does not expressly so state, it is apparently Mr. Stone's position that the Russell Primary School Site-Based Council improperly conducted a closed session to discuss selection of extended school services teachers already employed at the school, and that such discussion did not constitute the possible appointment, discipline or dismissal of these employees. 2 Ms. Zimmerman counters that no closed sessions took place at either the October 2 or October 10 meetings of the Council, and that the extended school services program was implemented on October 23. In support, she submits the agenda and minutes for the Council's meetings. The divergent factual accounts presented by the parties with regard to the alleged violation compel us to conclude that the record is insufficient to support the claimed violation. Simply stated, we are not equipped to resolve this factual dispute in either party's favor.
Although the record before us does not support the claimed violation of an improper closed session, we note, in closing, that the Russell Primary School Site-Based Council's failure to respond to Mr. Stone's complaint constituted a violation of the Open Meetings Act. KRS 61.846(1) provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint, and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The Council failed to issue a written response, and in so doing committed a procedural violation of the Open Meetings Act. We urge the Council to review KRS 61.846(1) 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(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.
Thomas Stone104 Sunset CourtAshland, KY 41101
Deneen ZimmermanRussell Primary School710 Red Devil LaneRussell, KY 41101
Ronnie H. Back409 Belfont StreetRussell, KY 41169-1320
Footnotes
Footnotes
1 Mr. Stone's appeal was received by facsimile transmission, and the full text of the appeal follows:
As of 4:00 PM today Mrs. Zimmerman's office has said that they will not respond to my request. Should you have any questions, please call me . . . .
Mr. Stone did not elaborate.
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2 Authority exists for the proposition that closed session discussion of the terms and conditions of the continued employment of an individual already employed by the public agency is improper inasmuch as such discussion is not equivalent to an appointment. See 94-OMD-63; compare 96-OMD-97.
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