Request By:
Leonard Wilson
755 Highway 213
Jeffersonville, KY 40337Leah N. Hawkins
Jeffersonville City Attorney
29 S. Maysville Street
Mt. Sterling, KY 40353Richard Henderson, Mayor
City of Jeffersonville
7900 Main Street
P.O. Box 127
Jeffersonville, KY 40337
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Jeffersonville City Council violated the Open Meeting Act at its January 3, 2005, special meeting: (1) by changing the meeting room from the Community Building/City Hall to the Maintenance Department, and (2) by conducting a closed session, under authority of KRS 61.810(1)(f), to discuss "employee matters." For the reasons that follow, we find that the answer to the first question is a conditional "no." However, we find that the answer to the second question is "yes."
On January 7, 2005, Leonard Wilson submitted a written complaint to Mayor Richard Henderson "concerning the location of the special meeting . . . [and an] executive session to discuss general personnel matters." As a means of remedying these alleged violations, he proposed that the January 3 meeting "be declared null and void" and properly conducted at a later date. In a response dated January 12, 2005, Jeffersonville City Attorney Leah Hawkins 1 denied the allegations of Mr. Wilson's complaint, advising:
Initially, the special meeting was to be held at the Community Building/City Hall at Jeffersonville, Kentucky. However, due to a scheduling conflict the meeting was unable to be held at that location. A notice was posted on the door of the facility, the Mt. Sterling Radio Station was notified of the change of the location at 4:00 p.m. and broadcasted the change to the public, and the individual who rented the building advised each person who entered the building of the change of the location of the meeting.
Noting that Mr. Wilson obviously knew of the change of location, since he attended the meeting, she asserted that the Council fully complied with the requirements for conducting special meetings codified at KRS 61.823.
Turning to Mr. Wilson's allegation that the Council improperly discussed general personnel matters in a closed session conducted during the same meeting, Ms. Hawkins observed:
[T]he topics of Assistant Clerk and Employees were items no. 3 and 6 on the agenda of the special called meeting. [A]s announced at the meeting, the Commission went into Executive Session to discuss employee matters. K.R.S. 61.810(1)(f) permits an exception to the Open Meetings Act, for discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting the employee's, member's, or student's right to a public hearing if requested.
It was the Council's position that the executive session was proper "and fell within the perimeters of the agenda of the special called meeting." 2
Upon receipt of the Council's response, Mr. Wilson initiated this appeal arguing that no notice of the change of location was posted on the door, that "the individual who rented the building did not advise" him of the change in location, that the same individual told him "that she did not know about the change of the meeting and [that] this was around 6:15 p.m. that evening at City Hall." In supplemental correspondence directed to this office following commencement of the appeal, the Council reiterated that the change of location was necessitated by a scheduling conflict and that "adequate and appropriate" steps were taken to publish the change. The Council also reiterated that because the challenged closed session focused on employee matters, specifically the "Assistant Clerk" and "Employees," the session was authorized by KRS 61.810(1)(f). Having reviewed the record on appeal, we find that the Jeffersonville City Council did not violate the Open Meetings Act in changing its meeting room location, as long as the change was otherwise unavoidable and all measures to notify the public of the change, as described, were taken. However, we find that the Council violated the Act by failing to establish that its closed session discussion was authorized under KRS 61.810(1)(f).
With reference to the latter issue, it is well established that:
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 early 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) ; OAG 90-125 (holding that university committee appointed to study academic standards for student athletes could not conduct closed session discussion of these matters under authority of KRS 61.810(1)(f)); 94-OMD-103 (holding that closed session discussion of the possible creation of a new position was improper); 97-OMD-80 (holding that discussion of appointment of 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 public agency improperly conducted closed session discussion of employee's resignation) ; 99-OMD-221 (holding that employee's claim for reimbursement could not be discussed in closed session) ; see also, 00-OMD-86; 04-OMD-179.
These decisions firmly establish that a public agency complies with the requirements for conducting a closed session under authority of 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. Clearly, matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be discussed in closed session, no other matters may be discussed in the closed session other than those publicly announced, and no final action may be taken during the closed session. KRS 61.815.
The Jeffersonville City Council acknowledges discussion of "employee matters," and more precisely, the "Assistant Clerk" and "Employees," but does not indicate whether those discussions focused on either appointment, or discipline, or dismissal. Based on the line of authorities cited above, we conclude that the record on appeal does not contain sufficient evidence to support the Council's reliance on KRS 61.810(1)(f) and that its closed session discussion constituted a violation of the Open Meetings Act.
Conversely, we find that the Council did not violate the Open Meetings Act in changing its meeting location as long as the change could not otherwise be avoided and the Council took the reasonable measures described to notify the public of the change. 3 Our review of existing authority discloses no open meetings decision addressing this issue, and, as in all matters not specifically addressed by the statute, we apply a rule of reasonableness. KRS 61.820 provides, in part, that all meetings of all public agencies shall be held at specified times and places which are convenient to the public. Applying this provision to a complaint stemming from a school board's decision to move a meeting from the board office room to the school library, in 97-OMD-84 this office observed:
[N]o matter what the precise reason for moving the meeting or the number of citizens in attendance at either facility, we think it can be stated that the meeting was moved for the convenience, safety, or comfort of the public. Moving a meeting for any of these reasons is proper, something for which the school board deserves credit, and is in furtherance of the board's obligations to hold a meeting in a place convenient to the public and which affords effective public observation of the proceedings.
97-OMD-84, p. 3.
In a more recent open meetings decision, dealing with a change in the time of a meeting, rather than the place of the meeting, this office found "no conscious attempt by the . .. agency to exclude the public from [its] meeting" when the starting time for a site based council meeting was delayed by thirty minutes. 04-OMD-56. At page 4 of that decision, we reasoned:
The thirty minute delay in convening the February 17 regular meeting of the council was occasioned by the parent-teacher conferences conducted earlier in the evening and an apparent desire to insure that all interested parties could attend the meeting in its entirety. We are not inclined to assign error for a half hour delay in starting time when such a delay could easily result from other unforeseen circumstances such as inclement weather. To hold otherwise would be tantamount to elevating form over substance, resulting in the unnecessary cancellation of properly "noticed" regular meetings. KRS 61.820. 4
Extending the reasoning of that decision to the appeal before us, we are reluctant to assign error when an unforeseen exigency, 5 such as the scheduling conflict here, necessitates a change in meeting room location and reasonable measures are taken to insure adequate notice to the public of that change. On these facts, we find that the Council was not required to cancel its special meeting.
Nevertheless, as in 04-OMD-056 we remind the parties:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good. See E.W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990) cited in Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Our decision today should not be construed as a license to randomly move meeting times . . . [or places] to suit the whims of agency members [or thwart public access to agency meetings] but as a narrow holding "reflect[ing] the simple reality that some flexibility must exist to accommodate agency members and meeting participants . . . ." 02-OMD-154, p. 7.
04-OMD-056, p. 5. We encourage the Council to exercise greater caution in the scheduling of its meetings to insure, as to the greatest extent possible, that this problem does not recur.
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 KRS 61.846(1) provides, in part, that the agency's response to an open meetings complaint "shall be issued by the presiding officer, or under his authority . . . ." Mayor Henderson did not respond on behalf of the Council, but we assume Ms. Hawkins' response was issued under his authority.
2 Theagenda for the meeting reads as follows:
AGENDA
SPECIAL CALLED MEETING
MONDAY, JANUARY 3, 2005
AT THE JEFFERSONVILLE CITY HALL
(COMMUNITY CENTER)
7:00 P.M.
1. Departments2. Choosing Mayor Pro-Tem3. Assistant Clerk4. Annexation of Lor Barb Estates5. Cost of Living Raise6. Employees7. Commissioners and Mayor Pay
3 Namely, posting a sign on the meeting room door notifying the public of the new location, insuring oral notice by assigning an individual to redirect members of the public arriving at the original location to the new location, and contacting available media outlets to advise them of the change in location.
4 We did, however, note that "repeated unforeseen 'delays' in convening regular meetings of a public agency, suggesting a conscious disregard for the requirements of the law, could result in an adverse ruling by this office." 04-OMD-056, n. 2. By the same token, repeated changes in meeting locations, suggesting a conscious disregard for the requirements of the law, could yield a different outcome in the event of an open meetings appeal.
5 Other unforeseen exigencies might include a failure of the heating system in cold weather, a failure of the cooling system in hot weather, or a complete failure of the electrical system in any weather.