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 Covington City Commission violated the Open Meetings Act by conducting an unauthorized closed session discussion of general personnel matters at its May 15, 2001 meeting. For the reasons that follow, we find that any discussion of the reorganization of a department of city government, no matter how brief the duration of that discussion, was not authorized under KRS 61.810(1)(f) and constituted a violation of the Open Meetings Act.
In an undated complaint, Howard B. Hodge alleged that in the course of its May 15, 2001 meeting the Commission improperly discussed the reorganization of the Housing Development Department and the creation of a new separate department for code enforcement in closed sessions conducted under "various statutory provisions." It was his position that the Commission "cannot legally go into closed or executive session to discuss such general personnel matters and the reconfiguration of the City's administrative structure." As a means of remedying the alleged violation, Mr. Hodge proposed that the Commission discuss these matters "at a future public meeting and declare all legislative actions resulting from the closed sessions null and void."
By letter dated February 15, 2002, City Solicitor John Jay Fossett denied that any such discussion occurred in the executive sessions conducted by the Commission at its May 15, 2001 meeting. Although he was not city solicitor at the time of the contested meeting, Mr. Fossett indicated that he had interviewed the city manager, the former city solicitor, the mayor, and all four city commissioners and none could recall any discussion of reorganizing the Housing Development Department or creating a new department for code enforcement in either of the executive sessions conducted on May 15, 2001. He noted that open discussions of these topics occurred at the 2001 City Commission retreat, and the Commissioners' July 24 and August 7, 2001 meetings, and furnished Mr. Hodge with copies of the minutes of these meetings documenting these public discussions.
On appeal, Mr. Hodge challenges the Commission's response, observing:
My knowledge is based on a telephone conversation with City Commissioner John (J.T.) Spence on the morning of May 16, 2001. Commissioner Spence advised me that at an executive session during the preceding evening's city commission meeting, Mayor Irvin "Butch" Callery presented the idea of splitting the Housing Development Department, which I headed at the time, and creating a new department of city government to administer housing and building codes. These functions had been in the Housing Development Department since 1980. The Mayor further proposed to appoint the city's Section 8 Housing Program Supervisor, Mildred Rains, to be the director of the new department. This act would necessitate creation of a new department head position, the transfer of numerous employees from the Housing Development Department, and the reassignment of numerous duties. Commissioner Spence indicated that the other commissioners present seemed to support the proposed action. He further stated that the City Manager, Greg Jarvis, and the then City Attorney, Joseph Baker, were asked to leave the executive session during the time the Mayor made his proposal.
Mr. Hodge supplemented his appeal with a written "overview of events surrounding" the creation of the new city administrative department along with various documents which, in his view, support the allegations contained in his complaint.
In a supplemental response directed to this office following commencement of Mr. Hodge's appeal, Mr. Fossett amplified on the Commission's position. He provided this office with affidavits from the mayor, the commissioners, and the city manager "refuting Mr. Hodge's allegations that the City Commission improperly met in executive session. " Continuing, Mr. Fossett observed:
The affidavits show that all of the persons who were present in the executive session agree that this issue was not discussed in this session. Mr. Hodge was not present at the executive session. Significantly, the alleged hearsay evidence that Mr. Hodge relies upon for his allegation is specifically denied by J.T. Spence, the city commissioner who Mr. Hodge asserts told him that this matter was discussed in executive session. Specifically, in his affidavit, Mr. Spence states:
Spence Affidavit at P 4. Mr. Spence further states:
Spence Affidavit at P 5.
Mr. Fossett noted that the affidavits describe discussions of the reorganization of the Housing Development Department "by city staff and commission members on numerous occasions prior to the city commission meeting on May 15, 2001 . . . ." He furnished us with copies of the memoranda exchanged by the city manager and mayor immediately before the May 15 meeting in which the city manager advised the mayor and commission members that the city "will establish a code enforcement unit," and the mayor responded with specific directives on the appointment of a director and staff.
To the extent that discussions concerning the reorganization of the Housing Development Department did not occur at meetings of a quorum of the members of the Commission, or a series of less than quorum meetings where the members attending one or more of the meetings collectively constituted a quorum and were held for the purpose of avoiding the requirements of the Open Meetings Act, they did not violate the Act, notwithstanding the fact that the public was effectively denied the opportunity to observe the discussion. The record before us reflects that the decision to reorganize the department, and the decision to appoint a specific individual as director, occurred well before the first reading of the ordinance on July 24, 2001. The only acknowledged public discussion of the reorganization prior to July 24 occurred at the January 2001 Commission retreat that was held in Lexington, Kentucky, a site that was inconvenient to the citizenry directly concerned. That meeting was the subject of a separate open meeting appeal in which the Attorney General concluded that the location was not convenient to the public and that therefore the meeting violated KRS 61.820. 02-OMD-78. Our decision in this appeal focuses on the Commission's closed session discussion of the reorganization at the May 15 meeting. It is our view that no matter how brief that discussion, it was not an appropriate subject for a closed session under 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.
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.
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.
Applying these principles to the appeal before us, we find that any closed session discussion of the reorganization of the Housing Development Department, no matter how brief, was not authorized by KRS 61.810(1)(f), and therefore constituted a violation of the Open Meetings Act. 00-OMD-113 (City Commission's KRS 61.810(1)(f) closed session discussion of anything other than whether discipline should be imposed on specific police personnel, including brief discussion of executive order relating to police department, was improper and violated Open Meetings Act) . In his affidavit filed on behalf of the City, Commissioner Spence acknowledges that "passing comments may have been made in reference to the reorganization, " and that:
Mayor Callery briefly announced that the Code Enforcement Department would be created and that Mildred Rains would be appointed to serve as Director of the Code Enforcement Department. I [Commissioner Spence] asked the Mayor at that time if Ms. Rains had already agreed to serve as director. The Mayor answered yes.
The "discussion under KRS 61.810(1)(f) involv[ing] the potential appointment of an employee in the City Works Department," which Commissioner Spence, Commissioner Edmondson, Commissioner Bohman, and Commissioner Bamberger reference in their affidavits, may have been permissible under KRS 61.810(1)(f). The brief discussion relating to reorganization of the Housing Development Department was not. For this reason, we conclude that this portion of the closed session violated the Open Meetings Act.
Further, we find that the record on appeal does not reflect compliance with KRS 61.815(1)(a). The minutes of the May 15, 2001 meeting document two closed sessions, the first "pursuant to KRS 61.810(1)(b) to discuss future acquisition or sale of real property where the publicity may affect the value of the property, (c) to discuss proposed or pending litigation, and (f) discussions which might lead to the appointment, discipline or dismissal of an individual employee, " and the second "pursuant to KRS 61.810(1)(b) to discuss future acquisition or sale of real property where the publicity may affect the value of the property, and (f) discussions which might lead to the appointment, discipline or dismissal of an individual employee. " Based on the minutes, it does not appear that the Commission otherwise observed the formalities for conducting these closed sessions.
KRS 61.815(1)(a) provides that prior to going into closed session:
Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.
The Kentucky Supreme Court has declared that this statute envisions "specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting." Ratliff at 924. On the issue of strict compliance with KRS 61.815(1)(a), the Attorney General has observed:
It is the opinion of this office that the Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed.
00-OMD-61, p. 6. Referring to the language employed by the Supreme Court in Floyd County Board of Education, above, we concluded:
In view of the disparate nature of the twelve exceptions, there can be no bright line test for determining if specific and complete notification has been given. However, consistent with the right of the people to "remain[] informed so that they retain control over the instruments they have created" (1974 HB 100, Preamble), we believe that the notification must include both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in sufficiently specific terms to enable the public to assess the propriety of the agency's actions.
Id.
With specific reference to KRS 61.810(1)(f), and discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student, we have observed:
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; 99-OMD-49; 01-OMD-181.
The minutes of the May 15 meeting do not reflect that the Commission gave notice in open session that the members intended to discuss the appointment of an employee in the City Works Department. 1 Although the exception was invoked and its language recited, there is no indication in the record that notice was given in the open meeting of the general nature of the business to be discussed and the reason for the closed session per KRS 61.815(1)(a). We believe it is incumbent on the Covington City Commission to describe the business to be discussed in "sufficiently specific terms to enable the public to assess the propriety of" the closed session. 01-OMD-61, p. 6. To the extent that the Commission failed to do so, we find that it violated 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 proceedings.
Footnotes
Footnotes
1 Bearing in mind that KRS 61.810(1)(8) is intended to protect reputational interests, and cannot be invoked to discuss general personnel matters, the Commission members could only discuss the individual qualifications of an applicant(s) for the position and not the need to create a position, a position description, salary, or benefits.