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 McCreary County Board of Education violated the Open Meetings Act in failing to respond to an open meetings complaint served on the Board's Chairman and in conducting a closed session, under authority of KRS 61.810(1)(f), at a meeting conducted on May 26, 2003. For the reasons that follow, we find that the Board's failure to respond to the open meetings complaint was mitigated by the unavailability of the Board Chairman due to a serious illness, but that the Board's reliance on KRS 61.810(1)(f) was misplaced.
On May 27, 2003, James Patton submitted a written complaint to Board Chairman Elmer C. Smith in which he alleged that no statutory authority existed for the Board's closed session discussion of "a grievance filed by Timothy Corder regarding the School District's failure to follow the registry requirements of KRS 161.011(10)." As a means of remedying the alleged violation, Mr. Patton proposed "that the Board in compliance with KRS 61.805 to 61.850 . . . take up the question of whether this school system will comply with the requirements of KRS 161.011(1) in open session. " Having received no response to his compliant, Mr. Patton initiated this open meetings appeal on June 13, 2003, asserting that "the mandated posting of a position pursuant to KRS 161.011(10) and the failure of the McCreary County Board of Education to adhere to this mandate is a matter of public concern which does not fall into the exception set out by KRS 61.810(1)(f)," especially in light of the requirements that "all exceptions are to be narrowly construed."
In a response directed to this office following commencement of Mr. Patton's appeal, Board Attorney Timothy Crawford denied the allegations of the complaint and explained the Board's failure to respond. With regard to the latter issue, he explained that Chairman Smith, on whom the complaint was served, became seriously ill after the last Board meeting "and is still recuperating . . . ." In defense of the Board's reliance on KRS 61.810(1)(f) as the basis for the closed session, Mr. Crawford advised:
Before the beginning of the regular board meeting on Monday, May 26, 2003, Mr. Patton appeared with his client and met with the Superintendent and me. I am not sure whether Mr. Patton is an attorney or a lay representative of the Kentucky Education Association. Mr. Patton asked Superintendent Ray M. Ball to post an extra duty position that had already been awarded to another individual. If Superintendent Ball had complied with that request, he would have had to have released that individual from the extra duties which would have resulted in the termination of the extra duty employment. Mr. Patton explained he wanted the position to be declared vacant and posted so Mr. Patton's client could apply for the position. The Superintendent refused to do so.
We believe the position did not have to be posted because it was created by the Board as an extra duty position and extra duty positions do not have to be posted. See, for example, OAG 91-149 and 97-7. Mr. Patton was of the opinion the extra duties had to be posted because the position was for a classified position rather than a certified position. The Superintendent disagreed and relied upon OAG 91-149 and 97-7 as authority that extra duty positions do not have to be posted.
Since the request made by Mr. Patton would have required the termination of personnel duties for the other employee, I did not think the Board was permitted by KRS 160.170 and KRS 160.380(2)(a) to be involved in the hiring or dismissal of a school employee except the Superintendent of Schools and the School Board Attorney. Thus, I recommended the Board not become involved in this issue.
Also, Mr. Patton demanded a public discussion of this personnel matter during the Board meeting and I recommended that his statements be made in a closed session pursuant to KRS 61.810(1)(f) since a decision to agree with Mr. Patton's request would have required the dismissal of the employee who was assigned the extra duties.
The Board agreed with my assessment and recommendation and a closed session was conducted and Mr. Patton and his client appeared and they were given an opportunity to voice their concerns. After Mr. Patton had finished, the Board refused to act upon the request since a decision by the Board, rather than the Superintendent, to relieve an employee of his duties would have violated KRS 160.170 and KRS 160.380(2)(a).
[W]e do not believe the extra duty position had to be posted. We also do not believe the Board had the authority to make a decision that would have terminated the extra duty services of the other employee and, finally, we do not believe that discussion which may lead to the dismissal of one employee and the appointment of another employee have to be conducted in an open session.
It is because discussions relating to the propriety of posting a position constitute general personnel matters, and because the Board had no authority to resolve that question, or questions relating to relieving an employee of extra duties, and because relieving an employee of extra duties cannot be equated with "discipline or dismissal" that we find that the Board's reliance on KRS 61.810(1)(f) was misplaced.
Fundamental to an analysis of the propriety of a public agency's conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
In interpreting this provision, 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.
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; see also 97-OMD-124; 99-OMD-49; 99-OMD-94; 00-OMD-86.
These decisions echo an earlier open meetings opinion in which the Attorney General recognized that:
The legislature specifically intended to close discussions 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. It is for this reason that the Attorney General has declared that "matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be discussed in closed session [under authority of KRS 61.810(1)(f)] . . ."00-OMD-86, p. 3, and that "KRS 61.810(1)(f), interpreted by this office in a manner consistent with the rule of strict construction codified at KRS 61.800, is 'severely restricted . . . [and only applies to discussions] which might lead to the appointment, discipline, or dismissal of personnel of that particular agency." 97-OMD-110, p. 3, cited in 99-OMD-94.
It is the opinion of this office that discussions pertaining to KRS 161.011(10), and construction of the posting requirements contained therein, do not qualify under the exception codified at KRS 61.810(1)(f) because they do not constitute discussions which might lead to the appointment, discipline, or dismissal of an individual employee. Instead, such discussions relate to general personnel matters, and KRS 61.810(1)(f) expressly prohibits "discussion of general personnel matters in secret. "
The board argues that because resolution of this issue in Mr. Patton's favor will result in an employee being relieved of extra duties, these discussions might lead to the dismissal of an employee and the appointment of another employee. However, the Board acknowledges that, pursuant to KRS 160.170 and 160.380(2)(a), the decision on this question rests with the superintendent, and that it has no "authority to make a decision that would . . . terminate[] the extra duty services of . . . [an] employee." In 99-OMD-94, this office held that a task force charged with certain named duties, which did not include the authority to resolve questions relating to the appointment, discipline, or dismissal of the public agency which created it, improperly conducted a closed session discussion of "personnel matters involving individuals who [were] subject to the control and authority of [that agency]." At page 6 of that decision, we observed:
While it is true, . . . that committees appointed by a public agency for the express purpose of making recommendations relative to the appointment of an employee may properly rely on KRS 61.810(1)(f) to conduct closed session discussions of individuals under consideration, [footnote omitted] these facts do not exist in this case. The mandate of the Task Force is clear and direct and contains no reference to the authority to make recommendations relative to the appointment, discipline, or dismissal of "individuals who are subject to the control and authority of the [agency which created it]." In the absence of an exception authorizing closed session discussions of "sensitive personnel issues" over which the Task Force has no apparent authority, we must conclude that the Task Force violated the Open Meetings Act at its May 3, 1999, meeting.
Because the McCreary County Board of Education has, by its own admission, no authority to appoint, discipline, or dismiss an individual employee, we find that 99-OMD-94 is dispositive of this issue. The Board's closed session discussion of the posting requirement, and the reassignment of duties issue tangentially related thereto, "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Ratliff at 924.
Assuming for the sake of argument that the Board was vested with authority to appoint, discipline, or dismiss an individual employee, we do not believe that the reassignment of duties can be equated with discipline or dismissal. As we noted in OAG 83-415, KRS 61.810(1)(f) is intended to authorize closed session discussions only if there is a potential for reputational damage and no such potential exists under the facts of this appeal. Relieving an employee of duties as a necessary consequence of an act or omission of the agency does not reflect negatively on that employee. For these reasons, we find that the Board's reliance on KRS 61.810(1)(f) was misplaced. Accord 03-OMD-089, p. 13 (holding that agency improperly relied on KRS 61.810(1)(f) as the basis for a discussion of various proposals relating to agency reorganization, two of which would have resulted in dismissal of official, inasmuch as "the dismissal of an individual employee was not the focus of the closed session discussion but was instead an unavoidable consequence which would flow from selection of two of the three proposals, and [the official's] reputational interest was implicated, if at all, only indirectly.")
Turning to the question of the Board's failure to respond to Mr. Patton's complaint, we note that KRS 61.846(1) provides:
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.
In his June 23, 2003 response, Mr. Crawford explained that Chairman Smith, to whom the complaint was properly directed, became seriously ill after the last Board meeting and is still recovering. Because the complaint may not have been properly forwarded to the agency for response, we are reluctant to assign error for this apparently unavoidable breakdown. Nevertheless, we encourage the McCreary County Board of Education to implement measures to insure timely responses to open meetings complaints.
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.
James PattonKentucky Education Association P.O. Box 1983Richmond, KY 40476-1983
Elmer C. SmithBoard ChairmanMcCreary Co. Board of EducationP.O. Box 49Pine Knot, KY 42653
Timothy Crawford, AttorneyMcCreary Co. Board of EducationCrawford Law Office318 North Main StreetCorbin, KY 40701