Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Mortons Gap violated the Open Meetings Act at its November 22, 2005, special meeting: (1) by restricting public access to the meeting in City Hall and (2) in its conduct of a closed session, under authority of KRS 61.810(1)(f), to discuss "personnel. " For the reasons that follow, we find that the answer to both questions is "yes."
On March 29, 2005, John S. Dunning submitted a written complaint to Mayor Frank Stafford "in regards to your council meetings on Nov 8 and 22, 2004. As you know you posted Policeman David Braden at the door and denied me and the other people entry. However Loman Scarborough was allowed in."
As a means of remedying these alleged violations, he proposed that (1) he be mailed a copy of the minutes; (2) that the city council members sign a statement that they will in the future obey all Kentucky state laws dealing with council meetings and attend classes dealing with parliamentary procedure; and (3) that the mayor resign and never hold office anywhere in the United States again.
In a response dated April 1, 2005, Vickie Marsh, City Clerk, advised:
In response to your request for a copy of our minutes on November 8, 2004 and November 22, 2004, I am enclosing a copy of the minutes.
Upon receipt of the City's response, Mr. Dunning initiated this appeal, arguing, in relevant part:
As I stated the mayor posted Police Chief David Braden at the door. He would not let me in at any time before, during, or after the meetings. I have several witness that will testify or give you a statement if requested. He refused several people entry into these meetings. However, he let others in. Also please check the Nov 22 meeting to make sure that proper notice of that meeting was given. 1
In a supplemental response directed to this office following commencement of the appeal, the City Clerk advised:
This letter is in response to log number 200500255, concerning a meeting held in our city in November 22, 2004. This meeting had been scheduled to have the first reading of the ordinance pertaining to water and sewer rates. A closed session was held in the beginning of the meeting to discuss the Fire Department. The Fire Chief and most of all the members had resigned the prior week. The closed session was being held to determine what course of action would need to be taken. A large number of the ex-members had gathered near the front door of the city hall. At this time only those persons which were needed to determine the future of the fire department were permitted to enter the closed session. As for Loman Scarborough being granted entry, Mr. Scarborough had held the position of Fire Chief at one time. Mr. Scarborough was asked to bring any and all records that he might have copies of. This request was due to the fact that no records were left in the office at the Fire Department. Training records, inventory records, run reports, and several items had been removed from the fire station. We hoped that the information that Mr. Scarborough might provide would shed light on what all had been removed from the fire station.
After the closed session ended, the Mayor asked the Police David Braden to unlock the door to city hall. At this time anyone that wanted to attend the meeting was allowed to enter. Most of the ex-members of the fire department had left.
A copy of the minutes of the City's November 22, 2004 meeting was provided to this office by Mr. Dunning. The minutes provide in relevant part:
The City met in a called session to discuss personnel and have the first reading of the new water and sewer rates . . . The Mayor called the meeting to order and immediately put the council in closed session to discuss personnel. 2 After some discussion and with the approval of all council members the mayor appointed Joseph Hancock as intern fire chief for a six month trial period. The Mayor closed the closed session. 3 The Mayor then opened the session for reading of water & sewer rates . . . .
By letter dated April 22, 2005, Mr. Dunning submitted a reply to the City's supplemental response, asserting in part:
First off I was never allowed in from the beginning, as required by KRS a meeting must begin open. This was never the case at Mortons Gap. I was never allowed in from the start. The door was also not locked. David Braden was posted there and said that I would not be allowed in way what so ever.
We address first the issue of public access to a public meeting. KRS 61.840 provides:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
Citing prior decisions interpreting KRS 61.840, this office in 00-OMD-169, stated:
In construing this provision, the Attorney General has recognized, on at least two occasions, that KRS 61.840 vests members of the public with a virtually unconditional right to attend all meetings of a public agency. 94-ORD-45; 95-OMD-99. Conditions on attendance, such as residency in the city or county served by the public body (98-OMD-44), or a mandatory sign-in sheet (98-OMD-44; 00-OMD-63) have been held to contravene KRS 61.840.
In his complaint, letter of appeal, and reply, Mr. Dunning contends that he was not allowed in the meeting at any time before, during, or after the meeting. The City's responses do not address this claim. To the extent that Mr. Dunning was denied access to the open public meeting, this was a violation of the Open Meetings Act.
We next address whether the closed session to discuss "personnel" violated the Open Records Act. For the reasons that follow, we conclude the City violated the Act by failing to establish that its closed session for "personnel" was authorized under KRS 61.810(1)(f). 4 With reference to this issue, in 05-OMD-011, this office stated that 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:
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.
In its supplemental response, the City advised that the "closed session was held in the beginning of the meeting to discuss the Fire Department. The Fire Chief and most of all the members had resigned the prior week. The closed session was being held to determine what course of action would need to be taken." It is the opinion of this office that discussions concerning the course of action to take with the fire department do not qualify under the exception 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. " 5 03-OMD-148. Accordingly, we find that the City violated the Open Meetings Act in going into closed session to discuss the fire department.
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 This issue was not raised in Mr. Dunning's original complaint to Mayor Stafford. Because he did not raise this issue in his original complaint relating to proper notice, the issue is not ripe for review here.
2 An agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) to go into closed session 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 or employees of the agency, indicating which of these particular actions is contemplated. The record before us does not reflect whether the City observed these formalities before going into closed session.
3 The minutes of the November 22, 2005 meeting indicate that the City took final action on the fire department issue in the closed meeting. This was a violation of the Open Meetings Act. KRS 61.810(1)(c) states: "No final action may be taken at a closed session. "
4 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 [.]"
5 The City's November 22, 2004 minutes indicate that discussions at the closed meeting did lead to the appointment of an interim fire chief. If this had been the announced purpose in open session as the reason for going into closed session, it would not have been a violation of the Open Meetings Act.