Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Oldham County Fiscal Court violated the Open Meetings Act by holding a series of less than quorum meetings, where the members attending one or more of the meetings collectively constituted at least a quorum of the members, for the purpose of avoiding the requirements of KRS 61.810(1), as evidenced by the policy implemented at its regular meeting of October 19, 2004. In addition, this office is asked to determine whether the Oldham County Fiscal Court violated the Open Meetings Act by going into closed session to discuss general personnel matters not authorized by KRS 61.810(1)(f) at its regular meeting of November 2, 2004. Based on the conflicting evidence of record, this office is unable to conclude that the actions of the Fiscal Court prior to its meeting of October 19, 2004, fall within the zone of conduct prohibited by KRS 61.810(2). However, to the extent that the Fiscal Court engaged in a discussion of general personnel matters not authorized by KRS 61.810(1)(f) during the closed session held on November 2, 2004, the Fiscal Court violated the Open Meetings Act.
By letter dated October 26, 2004, Mary Ellen Kinser, Oldham County Judge-Executive, alleged that the Fiscal Court held "a series of private meetings of less than a quorum in an effort to subvert the law," thereby violating the Open Meetings Act. 1 Attached to Judge Kinser's letter is a copy of "a verbatim discussion" from the Fiscal Court meeting of October 19, 2004, transcribed by Sharon L. Herndon, Fiscal Court Clerk, which demonstrates that the Fiscal Court "created a policy in a series of private meetings, and implemented it" at that meeting. 2 In support of her position, Judge Kinser relies upon Magistrate Duane Murner's statement that the magistrates "met in groups of two or three to avoid a quorum. "
"As the presiding officer of Fiscal Court," Judge Kinser submitted a written complaint to the Fiscal Court in compliance with KRS 61.846(2) on November 4, 2004, alleging that the magistrates had admitted holding a "series of meetings in which opinions and polic[ies] were formed" and "acted on this policy" at the Fiscal Court meeting of October 19, 2004. 3 To remedy this violation, Judge Kinser proposed that the magistrates "admit in a Fiscal Court meeting [their] wrongdoing and void the policy [they] created unlawfully."
In addition, Judge Kinser complained regarding "the unlawful closed session" which was held on November 2, 2004. According to Judge Kinser, both John Fendley, County Attorney, and one of the magistrates indicated that "the session did not have anything to do with the discipline of an individual employee, but[,] rather[,] process and procedure of the administrative code." Judge Kinser left the meeting "due to the fact that legal counsel had made it plain that it was not a lawful closed session. " In Judge Kinser's view, Magistrate Murner "confirmed his intent" to hold a closed session by informing the county employee that it "was not about his performance review, but about the process and administrative code." In order to restore the public's confidence, Judge Kinser again proposed that the magistrates admit their error and apologize during a Fiscal Court meeting for their "wrongdoing and unlawful actions."
Upon receiving notification of Judge Kinser's appeal from this office, Mr. Fendley responded on behalf of the Fiscal Court. With respect to Judge Kinser's first allegation, Mr. Findley advises that it "is based on comments by Magistrate Duane Murner in an open meeting on October 19, 2004." During a conversation which "appears to be more tongue-in-cheek than factual in nature," Magistrate Murner indicated "that the magistrates have met two or three at a time to avoid a quorum situation as he puts it." According to Mr. Findley, the other magistrates are not aware of any such meetings and deny that any occurred. Attached to the Fiscal Court's response are affidavits to this effect from six of the eight magistrates, including Magistrate Murner, dated November 17, 2004. 4
In response to Judge Kinser's second allegation, Mr. Fendley observes:
Closed session was called for two reasons, the first being a discussion of property acquisition, a meeting in which all magistrates and Judge Kinser were involved. The second stage of the meeting was stated to be for reasons of personnel, which KRS 61.810(f) indicates can be closed if it concerns appointment, discipline, or dismissal. On the surface it appeared that the discussion would be more about methods of evaluation or defects in methods of evaluation and the County Attorney took the position that this would not meet the criteria under statute. The [m]agistrates may not have agreed with that decision but allowed a discussion to follow on the issue of evaluation. Judge Kinser's Human Resources Director, Chris Hovan, was present and Judge Kinser did not prevent her from participating. The Chief of Police was present and participated as well. Judge Kinser did not order these administrative personnel not to participate in the discussion. It is the position of Fiscal Court that these discussions could have led to two of three allowed topics. The discussion did not lead to that, it led to an understanding that the topic of evaluation would continue at a later time between the Chief of Police and the Human Resources Director, which might result in a re-evaluation of the form of evaluation as directed by the Administrative Code.
"Due to confusion as to the possible results of the inquiry," the Fiscal Court argues that is does not constitute a "blatant violation" of the Open Meetings Act. 5
Upon receiving a copy of the Fiscal Court's response, Judge Kinser submitted an affidavit to this office disputing the position of Magistrate Murner. 6 In relevant part, Judge Kinser explains:
As previous Judge-Executives[] have done, I have made nominations for appointments during regular session, whereby the appointments were confirmed within the same meeting. Appointments do not require "first readings" as stated by Magistrate Murner. Charge 1, second paragraph, Magistrate Murner confirms that the [m]agistrates discussed denying approval of appointments upon nomination as a policy that he and the other [m]agistrates had established. This policy is exactly what he was referring to in the Fiscal Court meeting [of] October 19, 2004[,] as a series of unlawful meetings. In fact, Magistrate Murner admits in his affidavit discussing the creation and implementation of such a policy with Magistrate Greenwell while outside of Fiscal Court. . . . Magistrate Murner admittedly discussed [during the meeting when I] made the nomination. This policy was created, discussed, and acted upon outside the Fiscal Court as Magistrate Murner confirmed in his affidavit and in Fiscal Court as a series of meetings. [sic] This is a blatant violation.
With respect to the closed session held on November 2, 2004, Judge Kinser confirms that the session was called pursuant to KRS 61.810(1)(b) and KRS 61.810(1)(f), but her recollection of the events in question otherwise differs. At the conclusion of the Fiscal Court's discussion regarding property acquisition, Magistrate Murner asked Chief Griffin and Ms. Hovan, Director of Administrative Services, to join the meeting. However, Judge Kinser "told Chief Griffin not to come in" so he stayed in the hall. Ms. Hovan then raised "a couple of personnel issues" which were "discussed and handled lawfully." As observed by Judge Kinser:
At that point[,] the closed session became unlawful; 7 in the room were [Ms.] Hovan, the [m]agistrates, [Mr. Fendley], [Ms. Herndon], and myself as Judge-Executive. Magistrate Murner stated [that] he wanted Chief Griffin to come into the room to discuss his letter and performance review. At no time did Magistrate Murner argue that we were on thin ice. I stated that the Chief of Police was unhappy with his performance review and since he served at the exclusive pleasure of the Judge-Executive[,] it was not an issue of the court since I was not bringing a discipline issue to the court regarding Chief Griffin. The County Attorney advised the court that this would not meet the criteria under the statute because it was more about process and methods in the [A]dministrative [C]ode[,] not the disciplining of an individual employee. Magistrate Murner argued with the County Attorney that it was about the process and not his performance review to which the County Attorney replied it must be about the discipline of an individual employee, and this is not. Magistrate Rash stated that the discipline of the Chief was between the Chief and the Judge and that discussion of the Administrative Code and personnel policies did not qualify [for discussion during a] closed session [held] pursuant to [KRS] 61.810[(1)](f). I stated again [that] I was not bringing a discipline issue [regarding] an individual employee, i.e., Chief Griffin[,] to the court, and the Chief report[s] exclusively to the Judge-Executive, therefore they had no authority to discuss. Magistrate Murner declared that he was going to bring in Chief Griffin anyway, [at which point] Magistrate Murner stood up and opened the door for Chief Griffin to enter, and at that point I removed myself from the meeting.
Attached to Judge Kinser's affidavit are affidavits from Ms. Hovan and Ms. Herndon, both of which verify Judge Kinser's version of events. Of particular relevance, the consensus is that Mr. Murner reminded Chief Griffin to confine his remarks to the process used because his performance review was not a permissible topic of discussion. 8
Resolution of the first issue presented hinges on our interpretation of KRS 61.810(2). Although Judge Kinser does not cite this provision in her complaint, it is her belief that the Fiscal Court violated the Open Meetings Act by creating a policy relating to the personnel appointment process at a series of private meetings of less than a quorum "in an effort to subvert the law," and implementing this policy at the Fiscal Court meeting held on October 19, 2004. KRS 61.810(1) contains the general mandate of the Open Meetings Act:
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, except for the following: [(a) through (l)].
Recognizing the potential for the intent of the Act to be subverted at meetings attended by less than a quorum of the members of a public agency, in 1992 the General Assembly enacted KRS 61.810(2), which provides:
Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
Since its enactment, KRS 61.810(2) has been the subject of multiple decisions issued by this office. In 00-OMD-63, for example, the Attorney General engaged in the following analysis of this provision:
. . . KRS 61.810(2), enacted in 1992, places restrictions on the rights of public officials to engage in discussions of the public's business in any forum other than a public forum.
* * *
Acknowledging the difficulties associated with determining the subjective intent of the participants in a series of less than quorum meetings, this office concluded, in 94-OMD-106, that the fiscal court violated the Open Meetings Act when its members met individually or in small groups to discuss public business. At page 3 of that decision, we reasoned that KRS 61.810(2) "represented an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act. "
Id., pp. 4-5. In examining the underlying purpose of KRS 61.810(2), the Kentucky Supreme Court concluded:
For a meeting to take place within the meaning of the [A]ct, public business must be discussed or action must be taken by the agency. Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action. Taking action is defined by the Act as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by the majority of the members of the governmental body." KRS § 61.805(3). The Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meeting requirement of the Act. KRS § 61.810(2).
Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998). 9
To violate the Open Meetings Act relative to "secret [or private] meetings" a public agency must therefore engage in one of the following two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken; (2) a series of less than quorum meetings attended by members of the agency collectively constituting a quorum held for the purpose of circumventing the requirements of the Act. 03-OMD-092, p. 5. Because there is no evidence of record which conclusively establishes that a meeting or series of meetings occurred, or that a quorum of the Fiscal Court was present at a single meeting or collectively at a series of less than quorum meetings, this office is unable to resolve the first of the two issues presented in favor of Judge Kinser.
KRS 61.805(1) defines the term "meeting" as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." Although Judge Kinser alleges that members of the Fiscal Court conducted a series of private meetings of less than a quorum held for the purpose of avoiding the requirements of KRS 61.810(1), the transcript of the Fiscal Court's October meeting upon which Judge Kinser relies does not support her position. Rather, Magistrate Murner initially conceded meeting "at different times in groups of 2 or 3," and subsequently admitted discussing appointments with Magistrate Greenwell and "maybe one or two others in separate conversations, " neither of which constitutes an admission that the magistrates met in groups which "collectively constitute at least a quorum . . ." In addition, six of the eight magistrates, including Magistrates Greenwell and Murner, deny participating in any "illegal meetings concerning Fiscal Court appointments" in the affidavits of record. No witnesses have come forward to attest that such meetings occurred. 10 Even when viewed in a light most favorable to Judge Kinser, the evidence of record therefore does not establish that the Fiscal Court engaged in the conduct proscribed by KRS 61.810(2) with the exception of the first element, a series of less than quorum meetings. 11 Standing alone, this does not constitute a violation of the Open Meetings Act. However, this decision should not be construed to encourage or condone the practice of conducting a series of less than quorum meetings at which any type of public business is discussed by the members of a public agency in contravention of the legislative policy that "the formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.800.
Turning to the remaining issue presented, it is the decision of this office that the Fiscal Court violated the Open Meetings Act in discussing "process and procedure" of the Administrative Code, which constitute general personnel matters not authorized by KRS 61.810(1)(f), in a closed session on November 2, 2004. As evidenced by the record, the Fiscal Court went into closed session "for reasons of personnel. " In her complaint, Judge Kinser alleges that Magistrate Murner "persistently discussed a director's performance evaluation" despite being advised by Mr. Fendley that such matters could not properly be discussed during a closed session held pursuant to KRS 61.810(1)(f). On appeal, Mr. Fendley acknowledges that the magistrates "may not have agreed with that decision but allowed a discussion to follow on the issue of evaluation." It is the position of the Fiscal Court that the discussion "could have led to two or three allowed topics." Instead, the discussion resulted in "an understanding that the topic of evaluation" would be discussed by Chief Griffin and Ms. Hovan at a later time. According to Magistrate Murner, Chief Griffin provided each of the magistrates with "a lengthy file detailing the circumstances of his performance evaluation and merit increase award" prior to the Fiscal Court meeting and indicated that he was "extremely upset by the results and the process . . .." In reply, Judge Kinser contends that Magistrate Murner insisted that the discussion concerned "the process and not his performance review," a position which is validated by both Ms. Hovan and Ms. Herndon.
Our analysis begins with the fundamental proposition codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 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 by law shall be strictly construed.
Recognizing that extraordinary circumstances occur which might justify an agency conducting public business during a closed session, the General Assembly has created a number of exceptions to this general rule. Among those meetings which are excepted from application of the Open Meetings Act 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).
When interpreting the provisions of the Open Meetings Act, Kentucky's highest 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."
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing
E.W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990). 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. Adopting language from the Court of Appeals, the Supreme Court concluded that "'the exceptions to the open meetings laws are not to be used to shield the agency from unwanted 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 the following reasons:
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 [.]
In applying this provision, commonly referred to as the "personnel exception" of the Open Meetings Act, this office 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[p. 3; OAG 90-125, p. 2].
Prior to going into 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; 03-OMD-148; 00-OMD-113; 00-OMD-86; 99-OMD-94.
Each of these decisions echoes an earlier Open Meetings decision 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 (holding that the public agency improperly relied upon KRS 61.810(1)(f) to conduct a closed session for the purpose of discussing an employee's resignation); 03-OMD-148, p. 7. No such potential exists here. 12
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 "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.'" 99-OMD-94, p. 6, citing 97-OMD-110, p. 3. See OAG 90-125 (holding that a university committee appointed to study academic standards for student athletes could not discuss such matters in a closed session called pursuant to KRS 61.810(1)(f)); 94-OMD-103 (holding that discussing the possible creation of a new position is improper during a closed session) ; 97-OMD-80 (holding that a discussion regarding the appointment of new 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 a public agency improperly conducted a closed session for the purpose of discussing an employee's resignation); 99-OMD-221 (holding that an employee's claim for reimbursement could not be discussed in closed session) ; 00-OMD-113 (holding that any discussion by the city commission that was not restricted to whether disciplinary measures needed to be imposed on the police personnel who participated in the specified raid was not authorized by KRS 61.810(1)(f) and any discussion relating to the executive order was not properly the subject of an executive session) .
Because Judge Kinser was "not bringing a discipline issue to the court regarding Chief Griffin," nor does the evidence of record indicate that the Fiscal Court was engaged in a discussion regarding the performance evaluation process as applied to Chief Griffin which might have led to the discipline or dismissal of Chief Griffin as authorized by KRS 61.810(1)(f), the Fiscal Court "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Ratliff, at 924. 13 To this extent, the Fiscal Court violated the Open Meetings Act. Our conclusion is consistent with the views expressed by the drafters of the Open Meetings Act in the preamble:
[T]he people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created.
Accord 03-OMD-089, p. 13. (holding that the public agency improperly relied upon KRS 61.810(1)(f) as the basis for a discussion concerning various proposals for reorganizing the agency, two of which would have resulted in dismissal of an 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.")
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.
Mary Ellen KinserOldham County Judge-Executive100 West Jefferson StreetLaGrange, KY 40031
Duane Murner, Magistrate8502 Todds Point RoadCrestwood, KY 40014
Bill Tucker, Magistrate4118 Suwanee DriveLaGrange, KY 40031
Bob Deibel, Magistrate7403 E. Klingus CircleCrestwood, KY 40014
Steve Greenwell, Magistrate6350 S. Highway 53Smithfield, KY 40068
Paula Gish, Magistrate12008 Cloverdale CourtGoshen, KY 40026
Rich Rash, Magistrate7409 Autumn Bent WayCrestwood, KY 40014
Bob Leslie, Magistrate2306 Running Brook RoadLaGrange, KY 40031
Beverly McCombs, Magistrate309 West Madison StreetLaGrange, KY 40031
John R. FendleyOldham County AttorneyFiscal Court Building100 West Jefferson StreetLaGrange, KY 40031
Footnotes
Footnotes
1 Because Judge Kinser initially failed to submit a written complaint to the Fiscal Court as mandated by KRS 61.846(1), this office was unable to render a decision. By letter dated November 3, 2004, this office advised Judge Kinser of the procedure codified at KRS 61.846(2) which must be followed in order to perfect an appeal. Judge Kinser has now complied with this provision so the matter is ripe for review. Although KRS 61.846(1) provides that the person "shall submit a written complaint to the presiding officer of the public agency . . .[,]" this office has concluded that a presiding officer such as Judge Kinser should not be deprived of the right to appeal merely because of the position she holds in the absence of authority to the contrary. 02-OMD-83, p. 5.
2 In relevant part, Magistrate Murner said:
[Y]eah, let me just position this, a number of us have talked about at different times in groups of 2 or 3 so as not to avoid, sure to avoid the quorum situation, ah, have discussed putting off appointments to any of our boards, to a subsequent meeting so that we would have an opportunity to look into the candidate, particularly those whom we didn't know, or people didn't know them at all, if every Magistrate did not know them. In this case we[']re indebted to Magistrate Greenwell who took it upon himself to get the resumes of the 2 people being appointed, not that anybody doesn't know Coach Bell, but ah, and get them around to us, so that we have had an opportunity in the last several days to look at those appointments, so I'm prepared to vote on them now, even though, it would violate our, what we have kind of agreed among ourselves, and what we might want to do in the future. So with that . . .
At the conclusion of the exchange between Judge Kinser and the magistrates, a motion was made to appoint Virginia Snell to the Oldham County Public Library Board which passed with a unanimous vote. Judge Kinser then asked: "So I guess you all made a policy you just busted, is that what I hear?" to which all of the magistrates responded "No." Magistrate Murner responded: "We just explained why we were busting it."
3 By letter dated November 3, 2004, a copy of which is attached to her letter of appeal, Judge Kinser advises this office:
On November 2, 2004, the Oldham County Fiscal Court held a regular scheduled meeting. Prior to this meeting it was requested by Magistrate Murner that a closed session personnel issue item be added to the agenda. Magistrate Murner did not explain to the Human Resources Director, Ms. Hovan, nor myself as the Judge-Executive [the basis] for this agenda item, only that it would be regarding a possible disciplinary action.
* * *
During the course of the closed session, Magistrate Murner persistently discussed a director's performance evaluation and how he felt the director should have an opportunity to speak to the group on this action. He continued to state that the employee was unhappy with things that did or did not occur. John Fendley, County Attorney, stated to the Magistrates[:] "In accordance with KRS 61.810(f), Exceptions to Open Meetings-'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. '" Mr. Fendley continued with his discussion [,advising the Fiscal Court this is] a matter between the Judge-Executive and the director since the Fiscal Court does not have authority over the matter. He continued to state that the discussion brought forward was not in accordance with the specified KRS [61.810(f)] since they were discussing policy and the administrative code since they had no authority [to take] disciplinary action in this situation.
Without regard to counsel's advice, [or that of another magistrate] who mentioned that the discussion did not meet the requirements of a closed session meeting, [Magistrate Murner continued. Therefore, I] continued to state this [discussion did not concern] a disciplin[ary] action and did not meet with KRS requirements, that this issue was between the Director and myself.
Magistrate Murner continued with his discussion, and further brought this director into the closed session meeting. At that time, I left the meeting as I knew the actions by the [m]agistrates were against [the KRS].
4 By way of explanation, Magistrate Murner offers the following statement:
For some time, the magistrates have urged Judge Kinser to advise us of Board appointments in advance of the time when they must be subject to approval, i.e., we have asked that her intention to appoint, along with some information about the appointee(s), be announced at one meeting, with a vote at the next meeting (This is actually required by our Administrative Code - Paragraph 1 of Section 1.2.3, and probably by a state statute). Nevertheless, Judge Kinser continues to ignore this request.
After the Greg Uligian fiasco, some of us were upset and embarrassed that we had not "stuck to our guns" in insisting that Judge Kinser give us this advance information. I decided, for myself, that I would not approve any more appointments on first reading, and communicated this to Steve Greenwell, and maybe one or two others in separate conversations. At that time, we knew there was about to be before us a delayed appointment request to the Library Board of Harry ("Coach") Bell and Virginia Snell. Steve suggested that it would be peculiar to deny these appointments (which were already overdue) since we knew the candidates so well. He therefore took on himself the job of distributing in person to the magistrates the resumes of the two candidates, so that we could vote on them at first reading without compromising any individual magistrate's intention to withhold a vote on first presentation of the candidate.
When the two candidates for Library Board were presented, I recounted part of this history. On that basis, Judge Kinser decided we had engaged in illegal meetings . . . (Emphasis added).
With regard to the allegedly unlawful closed session, Magistrate Murner observes:
Police Chief Mike Griffin had sent to each of the magistrates (with a copy to Chris Hovan) a lengthy file detailing the circumstances of his performance evaluation and merit increase award, and his ongoing dispute with Judge Kinser. . . After careful thought and discussion with the Chief, I elected to suggest that we deal with this matter in closed session. I did this for three reasons: (1) Because I believed it was permitted under the Open Meetings Statute as a discussion of potential discipline of personnel; (2) Because I wanted to spare both Judge Kinser and Chief Griffin any public embarrassment, if possible, if that could be legally done; and (3) Because I planned to make very clear the narrow issue with which we were allowed to deal in closed session, namely, the application of our existing system to the Chief's unique situation.
* * *
In the closed session, three relevant comments were made. The first was by me indicating that we were on thin ice and would have to be careful to assure that our discussion did not wander into policy topics not allowed in a closed session. The second was County Attorney John Fendley's admonition to us on the same topic. The third was the same statement made to me by Chief Griffin when he finally appeared before us.
Although the subject of personnel discipline "is clearly allowed in closed session, " the Fiscal Court advised Chief Griffin that "matters of his evaluation and merit increase" could not be addressed since a mediation process is available to him via the Administrative Code. Likewise, the Court advised the Chief that it "could not address anything that smacked of HR policy." Rather, it "would only deal with the functioning (or, in his appeal, the [failure]) of our adopted procedures and systems [as applied] to his unique situation."
5 In 00-ORD-114, this office emphasized that the Open Meetings Act "does not recognize a class of violations of lesser gravity than the remaining class of violations, and therefore capable of being dismissed as merely 'technical'." Id., p. 3. Likewise, the Act does not recognize a distinction between blatant and subtle violations.
Usage Note: It is natural that blatant and flagrant are often confused, since the words overlap in meaning. Both attribute conspicuousness and offensiveness to certain acts. Blatant emphasizes the failure to conceal the act; blatant vanity. Flagrant, on the other hand, tends to emphasize the serious wrongdoing inherent in the offense; flagrant child abuse. Blatant is sometimes used to mean simply "obvious," but this use has not been established and is widely considered an error.
The American Heritage College Dictionary, p. 152 (4th ed. 2002).
6 Although Judge Kinser takes issue with Mr. Murner's interpretation of the Oldham County Fiscal Court Administrative Code, the applicable section of which is attached to her affidavit, resolution of this dispute is unnecessary.
7 As long recognized by the Attorney General, a person who is not a member of a public agency may be invited to attend a closed session if he or she "can contribute information or advice on the subject matter under discussion . . . but should remain only so long as is necessary to make his [or her] contribution to the discussion." OAG 77-560, p. 3. See 01-OMD-181, pp. 6-8, for the analysis employed by this office in determining whether the admission of non-members is justified.
8 In relevant part, Ms. Hovan advises:
Judge Kinser refused to participate in the meeting and left the room. I was sent to get Chief Griffin.
When we returned, Magistrate Murner told Chief Griffin that the group would not be discussing his performance review, only the process for performance evaluation. Chief Griffin was displeased by this. He tried to engage Magistrate Murner in a discussion about his performance review. Magistrate Murner reminded Chief Griffin that the Fiscal Court could not discuss the performance review, and to confine his remarks to the process used.
Likewise, Ms. Herndon observes:
. . . After a heated lengthy argument between Judge-Executive Kinser and Magistrate Murner regarding this issue, and still with the County Attorney stating this was not in compliance, Magistrate Murner continued to insist that Chief Mike Griffin be heard.
Magistrate Murner mentions in paragraph 3, last sentence, that he made the same statement to Chief Griffin when he finally appeared before us. Magistrate Murner stated twice to Chief Griffin that [the Fiscal Court was not there] to talk about [his] performance review but the process.
9 Although a quorum of the members of the Health Policy Board were present at a national health care conference, the Court held that the appellant's claim was devoid of merit since the "mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act." Yeoman, supra, at 474. Here, Judge Kinser does not allege that a quorum of the members of the Fiscal Court attended the "private meetings" in question. To the contrary, Judge Kinser contends that members of the Fiscal Court held "a series of private meetings of less than a quorum in an effort to subvert the law . . ." Accordingly, analysis of whether "public business" was discussed or action was taken is unwarranted.
10 Compare 98-OMD-94 and 00-OMD-114, in which the complainants personally observed the "secret" meetings in progress. In both cases, the public agencies acknowledged holding "secret" meetings, but defended the meetings, denying status as a public agency, and acknowledging that an "informal discussion" of a quorum had taken place in an adjoining room prior to the regular meeting, but characterizing the meeting as a "spur of the moment event" and merely a "technical violation" of the Act, respectively; the Attorney General found a violation of the Act had occurred in each case. In 02-OMD-83, the members of the Monterey City Council who had allegedly participated in the "secret" meeting or meetings denied that such meetings occurred, as appears to be the case here, although none of the magistrates with whom Magistrate Murner acknowledges conducting the meetings are identified other than Magistrate Greenwell. In light of the conflicting evidence presented, this office was unable to resolve the factual dispute of whether a quorum of the members of the City Council had convened in advance of the regular meeting in the absence of witnesses. Id. Because proof of this kind is equally lacking in the instant appeal, the same outcome necessarily follows. See 00-OMD-169; 00-OMD-142; 99-OMD-203; 99-OMD-167.
11 As codified at KRS 61.810(2), the three elements of the offense are as follows:
(1) a series of less than quorum meetings;
(2) the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency; and
(3) the meetings are held for the purpose of avoiding the requirements of [KRS 61.810(1)].
In contrast, the "undisputed allegations" of the complaint at issue in 03-OMD-092 established that the Shively City Council held a series of meetings of less than a quorum and that the members attending those meetings collectively constituted a quorum. Id., p. 6. Accordingly, this office concluded that the record on appeal confirmed two of the three elements of conduct proscribed by KRS 61.810(2).
12 In our view, "public embarrassment does not suffice. Ongoing disputes between public officials of the type which apparently prompted this appeal constitute "public business. "
13 Contrary to Magistrate Murner's assertion, KRS 61.810(1)(f) does not authorize a discussion regarding application of the Court's "existing system to the Chief's unique situation." Nothing in the record supports his claim that the discussion concerned "potential discipline of personnel [.]" Both the process used generally and the specific results of Chief Griffin's performance evaluation constitute "general personnel matters" which the Fiscal Court was not permitted to discuss in secret.