Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Hurstbourne City Commission violated the Open Meetings Act by failing to observe the formalities for conducting a closed session, and discussing unauthorized topics in that closed session, at its December 9, 2004, regular meeting, and by modifying the draft minutes of that meeting to reflect compliance with the formalities for conducting the closed meeting. For the reasons that follow, we find that the Commission violated KRS 61.815(1)(a), requiring notice "in the regular open meeting 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, " at the December 9 meeting. However, we find insufficient evidence in the record on appeal to support the claimed violation that the Commission members conducted discussions of unauthorized topics in that closed session. Finally, we find that the Commission violated KRS 61.835 by modifying the draft minutes of the meeting in such a manner that the minutes no longer contained "an accurate record of votes and actions" at the December 9 meeting.
On July 10, 2004, Mayor Furman F. Wallace submitted a written complaint to the Hurstbourne City Commission in which he stated that the minutes of the December 9 regular meeting, which he was unable to attend, reflect that the Commission retired to executive session "to discuss a personnel matter on a specific individual." In so doing, he alleged, the Commission violated the Open Meetings Act and the requirement "that the specific exception be spelled out and . . . which of the items listed under the exception be specified." Additionally, Mayor Wallace alleged that in the course of the closed session, the Commission discussed the assignment of new duties to the City Administrative Officer, and that "this topic is not covered under any of the exceptions for the Open Meetings Act. " In closing, Mayor Wallace complained that in response to his questions concerning the draft copy of the minutes, "a revised copy of the minutes was distributed . . . to hide the violation of KRS 61.815(1)(a)."
As a means of remedying these alleged violations, Mayor Wallace proposed that with regard to all future closed sessions, the Commission strictly observe the formalities codified at KRS 61.815, that with regard to the December 9 closed session, the Commission indicate the topics discussed in the minutes of the next meeting, that no future "alter[ation] of public records occur," and that the Commission mail an admission of violation to named locations in the City.
By letter dated July 13, 2004, Hurstbourne City Attorney Foster L. Haunz responded to each of the allegations of Mayor Wallace's complaint. Mr. Haunz advised:
The City Commission did go into closed session during its regular meeting of December 09, 2004. The reason given for the closed session, it turns out, was to "discuss a personnel matter on a specific individual." There were two (2) visitors present according to the minutes. All present knew that the individual to be discussed was you, Mayor Wallace. The motion did not specify specifically KRS 81.810(1)(f) as it should have. To be discussed was the disciplining of the Mayor for ignoring and violating the directions of the City Commission which could result in anything from censure to impeachment.
To cure any technical violation of KRS 61.810, the Attorney representing the City is now carrying with him to all city meetings a copy of that statute so that the full cite is available. We might emphasize that the procedure employed did not deceive anyone.
Next you make mention of the fact that an updated draft of the Minutes of the December meeting was distributed. I can see no violation of law in that only an unapproved draft of the minutes was updated, prior to consideration by the City Commission. All sorts of things could have been corrected during this period, such as name spellings, and the like, so that the minutes when considered by the Commission would contain the most accurate documentation of the proceedings. You complain not because anyone was deceived, but only because words were added to make the minutes more accurate in adding the statutory language supporting the session.
We do not believe that a movant must choose between "appointment, discipline, or dismissal" when a motion is made under KRS 61.810(1)(f) as the movant himself/herself may not know if it will be, for instance, discipline or dismissal (or impeachment).
You[r] assertion that the minutes "had been altered" is simply not accurate. The minutes are not minutes until adopted and approved by the City Commission. Your position would not even let a typo be corrected from first draft to second draft.
Mr. Haunz indicated that the Commission agreed to state the specific category of the exception under KRS 61.810 before conducting future closed sessions, and, "to the extent that the intent and purpose of a closed session is not violated, . . . disclose the closed session and the required purposes therefor in the minutes of the next succeeding meeting." Denying that public records had been improperly altered, Mr. Haunz indicated that he could not respond to the third proposed remedy, and characterized the final proposed remedy as "solely vindictive." Some fifty-nine days later, Mayor Wallace initiated this appeal. 1
In supplemental correspondence directed to this office following commencement of this appeal, Mr. Haunz elaborated on the Commission's position. He explained:
Mayor Wallace, hereinafter "Appellant," complains that the City Clerk transmitted corrected minutes of a Meeting to the City Commissioners to be substituted for the original draft, claiming this to be alteration of city records.
It is the City Clerk who is charged with keeping the minutes. Hurstbourne Code § 31.36. The City Clerk prepared and mailed out a draft of the Minutes. He later decided that a part of the Minutes could be more accurately stated, and sent out a second draft of the Minutes. The Appellant is now claiming that any change by the City Clerk to an earlier draft of Minutes prepared by him is an alteration of a public record.
Minutes are not official until adopted by the City Commission. We believe that the City Clerk has the legal right to change from one draft to another until such time as they are adopted by the City Commission as the minutes and only then do the Minutes become a public record. To hold otherwise would produce an absurd result. The preparer of the Minutes would be locked in as each word hit the paper on a first draft.
As for the substance of the updating of the draft of the Minutes, the City Clerk thought they were being made more clear. "In an ordinary society, unless the minutes are to be published, they should contain mainly a record of what was done at the meeting, not what was said by the members." Roberts Rules of Order Newly Revised Edition, § 47. There is no requirement that Minutes be verbatim, but they must substantially reflect what was done, not said.
At the meeting complained of, there were two guests present in the open meeting, at which a motion was made to go into executive session to discuss a personnel matter on a particular person (which everyone including the guests knew to be the conduct of the Mayor). The full verbiage contained in KRS 61.810 was not contained in the first draft of the Minutes, and to make the motion clear, was added to the second draft. This only made the Minutes more clear on what was done. No one was deceived and nothing was discussed in the closed session that was not stated in the purpose of going into the closed session.
In closing, Mr. Haunz noted that the City "recognizes that the best practice is to cite the full reference to KRS when going into closed session, " and that he "now carries with him to all meetings a copy of KRS dealing with closed sessions . . . [to insure] that the correct verbiage is included in the actual motion." On behalf of the City of Hurstbourne, he asserted that "there is nothing now for the Office of the Attorney General to decide, other than that the response of the agency is complete and satisfactory." Respectfully, we disagree.
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 construing KRS 61.810(1)(f), the Attorney General has observed:
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).
These decisions firmly establish that a public 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 of the agency, indicating which of these particular actions is contemplated. 99-OMD-49; 99-OMD-221; 02-OMD-6. Clearly, no other matters may be discussed in the closed session other than those publicly announced, KRS 61.815(1)(d), and no final action may be taken during the closed session. KRS 61.815(1)(c).
The Hurstbourne City Commission violated the Open Meetings Act at its December 9 regular meeting when it failed to strictly comply with KRS 61.815(1)(a) in invoking KRS 61.810(1)(f). That provision states:
(1) [T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
In construing this provision, the Attorney General has observed:
[T]he 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. In construing KRS 61.805 to 61.850, the Supreme Court observed:
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). With specific reference to KRS 61.815, the Court declared that prior to going into closed session, the public agency "must state the specific exception contained in the statute which it relied upon," and give "specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting. " Id. at 924 (emphasis added). 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.
00-OMD-64, p. 6. The cited authorities clearly demonstrate that citation to the specific exception authorizing the closed session is not simply "the best practice," or that the failure to do so is a mere "technical" violation, 2 but that it is instead a statutory requirement along with the requirement that the agency describe the general nature of the business to be discussed. As noted above, when the exception relied upon is KRS 61.810(1)(f), the agency discharges its duty to describe the general nature of the business to be discussed 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 individual employee, member, or student. Because the Commission failed to do so, its omissions constituted a violation of the Open Meetings Act.
Turning to the question of whether the Commission discussed topics in closed session that were not authorized by KRS 61.810(1)(f), we find that the record on appeal contains insufficient evidence to support Mayor Wallace's allegation. It is his belief that discussions pertaining to his incoming mail, and the Commission's desire that that mail be opened by the City Administrative Officer, were conducted in the course of the closed session. The record in this regard is incomplete. Mayor Wallace maintains that proof of the violation can be found in the fact that the Commission immediately passed a motion requiring the opening of his mail upon returning to open session. While this action suggests that such discussions occurred, nothing in the record on appeal substantiates his statements. The draft minutes of the December 9 meeting read as follows:
-Executive Session on Personnel Matter
Commissioner Hays made the motion that the Commission to [sic] into Executive Session to discuss a personnel matter on a specific individual. Seconded by Commissioner Wagner.
At 5:30 p.m. the Commission went into Executive Session.
At 6:10 p.m. the Commission came out of Executive Session.
Here, the draft minutes end. All other copies of minutes presented to this office are illegible. We cannot conclude, based on Mayor Wallace's bare allegation, that discussions of topics other than those relating to his discipline or dismissal occurred in closed session.
With reference to Mayor Wallace's final allegation, we find that because KRS 61.835 requires public agency's to maintain "an accurate record of votes and actions taken" at every meeting, the Commission may not direct the modification of the draft minutes "to show something other than what had actually occurred at the previous meeting." OAG 77-494, p. 2. In the latter opinion, the Attorney General was asked to determine whether a board member could change his or her vote on a motion voted on at the previous meeting before approval of the minutes of the previous meeting was sought. This office opined that the draft minutes could only be changed if they inaccurately reflected the vote actually made by the board member. There, we observed:
[W]e believe that the minutes may be amended at a subsequent meeting to conform them to the facts, but not to reflect a change in position on the matter involved in the question voted on. If through inadvertence the minutes have been inaccurately made, for example where the minutes failed to show the yeas and nays as actually voted, it is legal to correct the minutes according to the truth. It would be improper, however, to change the minutes to show something other than what had actually occurred at the previous meeting. To do this would be tantamount to falsification of records.
Accord, OAG 78-346; OAG 78-796; OAG 79-96. These opinions are premised on the notion that:
While minutes may be amended to complete it so as to reflect the truth of what occurred (such as to include an actual vote count), deficiencies in the minutes cannot be corrected by an amendment which is based upon oral testimony or affidavit of an action by the board not even reflected in the minutes.
OAG 79-96, p. 3. To hold otherwise "would lessen, if not destroy, the faith of the public in the verity and permanence of public records. "
Janutola & Comadori Construction Co. v. Taulbee, 229 Ky. 213, 16 S.W.2d 1026, 1052, cited in OAG 78-346.
Because the modifications to the minutes approved by the Hurstbourne City Commission "change the minutes to show something other than what actually occurred at the previous meeting," those modifications fall within the prohibitions set forth above. The net effect of those modifications was to reflect compliance with the requirements of KRS 61.815(1)(a), when in reality the Commission did not comply with the requirements. As in OAG 77-494, the fact that the minutes had not yet been approved does not alter our conclusion. The minutes of the December 9 Commission meeting must contain "an accurate record of votes and actions at such meetings," and the Commission's actions with respect to KRS 61.815(1)(a) were deficient. The minutes must record this fact.
This is not to say that typographical/spelling errors cannot be corrected prior to approving draft minutes, or that, consistent with the principles articulated above, modifications cannot be made to insure that the minutes conform to the facts. The modifications approved by the Hurstbourne City Commission resulted in a deviation from the facts and were therefore improper and inconsistent with the requirements found at KRS 61.835.
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.
Mayor Furman F. WallaceMayor, City of Hurstbourne904 Col. Anderson Pky.Louisville, KY 40222
Robert C. EnglishCommissionerCity of Hurstbourne304 Whittington Parkway, Suite 100Louisville, KY 40222
Foster HaunzHaunz & LuekeOne Riverfront Plaza, Suite 2016401 West Main StreetLouisville, KY 40202-4234
Footnotes
Footnotes
1 KRS 61.846(2) requires a complaining party to appeal a public agency's denial of an open meetings complaint within sixty days of receipt by that party of the denial. As noted, Mayor Wallace filed his appeal on the fifty-ninth day after receipt of the agency's denial.
2 In 00-OMD-114, this office declined to treat a violation of the Open Meetings Act as "technical." At page 3 of that decision we reasoned that "[t]he Act itself does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely 'technical.'" Here, too, we decline the invitation to treat the violation as technical.