Request By:
Donna Carman
The Casey County News
P. O. Box 40
704 Campbellsville Street
Liberty, KY 42539Mayor Steve Sweeney
City of Liberty
P. O. Box 127
Liberty, KY 42539Brian Wright
P. O. Box 519
Liberty, KY 42539
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 Liberty City Council violated the Open Meetings Act by conducting a closed session discussion of general personnel matters at its November 1, 2001 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 officers for claiming excessive overtime hours, and a discussion of the possible dismissal of the city's recently hired architects, it was not authorized under KRS 61.810(1)(f) and constituted a violation of the Open Meetings Act. Further, we find that the City Council's failure to respond to the open meetings complaint directed to it in writing, and within three business days of receipt, constituted a violation of KRS 61.846(1).
On November 8, 2001, Casey County News Editor Donna Carman submitted a written complaint to Mayor Steve Sweeney in which she alleged that the Liberty City Council violated the Open Meetings Act at its November 1 meeting when it went into closed session for the stated purpose of discussing "personnel, " but instead discussed such extraneous matters as "problems relating to [local architect] Rodney and [city planner] Sydney Wright, and the insurance premium tax." She complained:
KRS 61.8050-61.850 states that public agencies that go into closed sessions are not to discuss anything in private except those exceptions provided in the law. There is no exception permitting closed discussion about "personnel. " KRS 61.810(1)(f) does permit closed discussions "which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student." This exception does not apply to outside, non-employee professionals.
Ms. Carman proposed that the Council remedy the violation by discussing at its next meeting, in open session, "items they discussed in private during the Nov. meeting." Having received no response to her complaint, she initiated this appeal by letter dated December 20, 2001 and received in this office on December 26, 2001.
In a response directed to the Attorney General following commencement of Ms. Carman's appeal, Liberty City Attorney Brian Wright defended the Council's actions. Mr. Wright explained that two personnel matters were discussed in closed session, the first pertaining to issues stemming from the recent employment of Mr. and Mrs. Wright to prepare architectural drawings for a proposed city hall and to act as consultants during the implementation of a new comprehensive plan for the city. Included in these discussions were references to a bill submitted to the city by the Wrights for services the Council deemed beyond the scope of their employment and which the Council determined would not be paid, and an apparent dispute involving the architectural drawing and actions taken by the Wrights relative to the drawings which prompted at least one council member to propose their dismissal. The second topic discussed in the closed session pertained to a council member's inquiry into excessive overtime hours submitted by two Liberty police officers, and the council member's concern that the excessive overtime hours might warrant the imposition of disciplinary measures. It was from this topic that the issue of an insurance premium tax arose. The Council acknowledged that the only long term solution to the problem of overtime was the hiring of an additional officer, and that such a position could only be funded by increasing revenues through an increased insurance premium tax.
Based on this summary of the matters discussed in closed session, Mr. Wright asserted that "the City of Liberty does not feel that it violated the Kentucky Open Meetings Act, but that the City of Liberty simply discussed topics which were proper for discussion in a closed, executive session. " It is the opinion of this office that the Liberty City Council violated the Open Meetings Act in failing to respond to The Casey County News' November 8 complaint, and in conducting discussion in closed session of some matters that did not fall within the parameters of KRS 61.810(1)(f).
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: "[T]he 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 . "[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.
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) ; 00-OMD-113 (holding that agency violated Act by discussing in closed sessions matters that did not relate to discipline of police officers) .
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. 1 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 Liberty City Council that was not directly related to the possible dismissal of the Wrights and the possible discipline of the police officers (including, in the Wrights' case, discussions pertaining to the scope of their employment and the decision 2 not to pay the bill they submitted, and in the police officers' case discussions pertaining to the need to expand the police force and fiscal measures associated therewith), was not authorized by KRS 61.810(1)(f) and therefore constituted a violation of the Open Meetings Act. No matter how brief or unintended, discussions relating to matters other than the appointment, discipline, or dismissal of an employee are inappropriate in a closed session. Bearing in mind that the General Assembly has declared that the exceptions codified at KRS 61.810 must be strictly construed, 3 we find that the Liberty City Council violated the Open Meetings Act at its November 1, 2001 regular meeting.
In closing, we note that the City Council's failure to respond to Ms. Carman's complaint constituted a violation of the 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 City Council failed to issue a timely written response, and in so doing committed a procedural violation of the Open Meetings Act. We urge the City 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.
Footnotes
Footnotes
1 The record before us does not reflect whether the city council observed these formalities before going into closed session.
2 No final action of any kind is permissible in a closed session per KRS 61.815(1)(c), including the decision not to pay a bill.
3 KRS 61.800.