Request By:
Edward S. Monohan
7711 Ewing Blvd., Ste. 100
P.O. Box 157
Florence, KY 41022-0157Billy Hill
Grant County PSCC Board
212 Barnes Road
P.O. Box 111
Williamstown, KY 41097-0111Ed Lorenz
200 S. Main Street
P.O. Box 70
Williamstown, KY 41097
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Grant County Public Safety Communications Center (PSCC) Board violated the Open Meetings Act by, after coming out of closed session, failing to take a vote in open session on the question of termination of an employee. For the reasons that follow, we conclude that a violation of the Act occurred.
On May 30, 2002, Edward S. Monohan submitted a written complaint to Billy Hill, Chairman, Grant County Public Safety Communications Center Board, in which he alleged a violation of the Open Meetings Act by the Board. Specifically, Mr. Monohan complained:
This office represents Anita D. Koebbe, an employee of the Grant County PSCC. Our client has informed us that on February 8, 2002 the Grant County PSCC Board convened a meeting to discuss her continued employment status with the Board. Our office had previously asked the Board to attend the hearing on behalf of our client but we were denied access to the hearing.
Additionally, we are informed that the Board adjourned to a "secret" session to discuss the entire matter. Our client was not allowed to participate in this closed session. Following the closed session, her supervisor, Melissa Richardson, informed our client that the Board had terminated her.
We are further informed that no vote was taken by the Board in open session to terminate our client and furthermore no reasons were given by the Board for our client's termination.
The purpose of this letter is to submit a written complaint to you as presiding officer of this public agency under the Open Meetings Act (KRS 61.846) and to request that you remedy these violations of this Act.
By letter dated May 31, 2002, Mr. Monohan submitted a followup and supplement to his May 30, 2002 complaint letter, outlining what the Board should do to remedy its violation of the Open Meetings Act. As a means of remedying the alleged violations, Mr. Monohan proposed:
. Issue a directive rescinding the termination of our client Anita D. Koebbe dated February 11, 2002 from Melissa Richardson;
. Provide our office with a complete copy of the personnel file of Anita D. Koebee;
. Provide our office with a copy of all the charges against our client;
. Provide our office with a list of all witnesses which will be called to testify against our client;
. Reconvene the Grant County PSCC Board for the purpose of hearing any charges against our client;
. Allow us to present proof on behalf of our client including documentation and witnesses;
. Record the reconvened proceeding so that a transcript may be provided to us;
. In all respects, otherwise comply with the Kentucky Open Meetings Law (KRS §§ 61.805-61.850).
In his letter of appeal to this office, dated June 20, 2002, Mr. Monohan states that, as of that date, no response to his complaint had been received.
After receipt of Notification of the appeal, Melissa Richardson, Supervisor of Communications, by letter date June 27, 2002, provided this office with a response to the issues raised in the appeal. In her response, Ms. Richardson states:
In viewing this appeal there is an allegation in the Monohan letter dated May 30, 2002, that the Grant County PSCC Board met in "secret" session to discuss employee Anita Koebbe.
There was a meeting w[h]ere an "Executive Session" was held for purpose of disciplinary of personnel. No action was taken until meeting was returned to open session. During this open session, the Grant County PSCC Board of Director's informed Anita Koebbe that she was terminated.
This hearing with the Grant County PSCC Board was with full knowledge of Attorney Monohan. (Please see attached letter.)
KRS 61.846(1) establishes the duties of a public agency in responding to an open meetings complaint. That statute provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Mr. Monohan, in his letter of appeal, dated June 20, 2002, indicates he had yet to receive a response to his complaint and supplement, dated May 30, 2002 and May 31, 2002, respectively. In its response to the letter of appeal, the PSCC Board offered no explanation as to its failure to timely respond. The failure of the PSCC Board to respond to the complaint and supplement within three business days after their receipt constituted a procedural violation of the Open Meetings Act. The procedural requirements of the Open Meeting Act are not mere formalities but are instead essential to the prompt and orderly processing of an open meetings complaint. The PSCC Board should be guided by these observations in responding to future open meetings complaints.
Addressing the substantive issue, Mr. Monohan's complaint is that no formal vote was taken by Board to terminate Anita D. Koebbe. His complaint does indicate that following the closed session, Ms. Koebbe's supervisor informed her that the Board had terminated her.
In its response to the letter of appeal, the Board stated that no action was taken by it until the meeting was returned to open session, during which the Grant County PSCC Board of Director's informed Ms. Koebbe she was terminated.
To the extent the Board failed to comply with the provisions of KRS 61.815(1), it violated the Open Meetings Act. KRS 61.815(1)(c) specifically states that no final action may be taken in closed session. Thus, the Board, after discussing the matter of termination of Ms. Koebbe in closed session, would have been required to go back into open and public session and, at that time, vote to take final agency action on the question of the termination. Mr. Monohan specifically alleged that no vote was taken by the Board in open session to terminate Ms. Koebbe. No evidence was submitted on behalf of the Board that refuted that allegation. The record before us does not indicate this was done. Accordingly, the Board's failure to follow the provisions of KRS 61.815(1)(c) constituted a violation of 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.