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 University of Louisville Student Government Association, acting through the Student Senate, violated the Open Meetings Act at its meeting on March 22, 2005, by going into closed session pursuant to KRS 61.810(1)(f) for the purpose of discussing the removal of Academic Vice President Sarah Hester from office. In addition, this office is asked to decide whether the SGA committed a procedural violation of the Act in failing to respond in writing to the complaint submitted by Mallory Bowman, Editor in chief of The Louisville Cardinal, within three business days as mandated by KRS 61.846(1). Because Ms. Hester qualifies as a "member" under KRS 61.805, and the removal of an employee, member, or student can be equated with the "dismissal" of same in our view, the SGA properly invoked KRS 61.810(1)(f) as authority for the closed session held on March 22, 2005. Although the exact timeline is unclear from the record, the SGA apparently failed to respond in writing to Ms. Bowman's request until receiving notification of this appeal thereby violating the Open Meetings Act.
In an undated letter directed to Ryan McKinley, SGA President, Ms. Bowman, acting on behalf of The Cardinal, challenged the actions of the SGA "at the SGA Sarah Hester removal trial held on March 22, 2005." At that meeting, "the SGA voted to go into a closed or executive session to discuss Ms. Hester's removal. " Alleging that the "council cannot legally go into a closed or executive session to discuss general personnel matters," The Cardinal then seemingly contradicts itself by claiming that an agency "can in fact have a closed meeting for general personnel matters, however, Hester is an elected official of a public entity," so the statute does not apply. 1 Presumably as a means of remedying the alleged violation, The Cardinal requested a "full and unabridged copy of the minutes from that hearing." Because Ms. Hester "was elected by students to serve students, she should and will be held accountable by The Cardinal." 2
Upon being notified by Mr. McKinley that her complaint should be directed to Dr. Denise Gifford, Vice President of Student Affairs and the presiding officer of the SGA, Ms. Bowman contacted Dr. Gifford via electronic mail dated April 13, 2005, attaching a copy of a nearly identical complaint with a hard copy to follow. Citing KRS 61.810(1)(f), Ms. Bowman reiterated The Cardinal's view that the SGA "cannot legally go into a closed or executive session to discuss the positions of publicly elected officials." In a response dated April 14, 2005, Dr. Gifford advised Ms. Bowman that she would "review it later today."
Having received no additional response from the SGA, The Cardinal initiated this appeal in an undated letter received by this office on April 21, 2005. As summarized by The Cardinal, this appeal concerns "the closing of a Student Government Association officer removal trial held on March 22, 2005, at which the SGA discussed the removal of the elected vice president Sarah Hester." According to Ms. Bowman, the president of the SGA declined to respond due to the belief that the "decision is in the hands of the presiding officer, Mrs. Gifford." Although Dr. Gifford confirmed receiving Ms. Bowman's request, "more than five days passed and no response was received." The Cardinal was informed "that no minutes were kept of the meeting." In Ms. Bowman's view, the closing of such a session to the public is a violation of KRS 61.810(1)(f).
Upon receiving notification of The Cardinal's appeal from this office, Angela D. Koshewa, University Counsel, responded on behalf of the SGA. As observed by Ms. Koshewa, this appeal resulted from the actions of the U of L SGA, acting through the Student Senate, "when it conducted an executive session to hear and consider information concerning the possible removal of one of its officers, a student, who had been elected to her post by the students of the University." Pursuant to Title II, Section 102.1 of the SGA By-Laws, a copy of which is attached to Ms. Koshewa's response: "Any and all meetings of the Student Senate and the SGA Boards, with or without a quorum present, shall be open to the University community except discussions that involve the appointment, discipline or dismissal of an individual, . . . " Other requirements for conducting a closed session include "the giving of notice of the purpose for the session, that no final action may be taken at a closed session and that only matters announced prior to the beginning of the closed session may be discussed." To this extent, the SGA By-laws mirror the Open Meetings Act.
With respect to the status of the SGA, the University "assumes that the SGA or the Student Senate" may qualify as a "public agency" subject to the provisions of the Open Meetings Act for "purposes of this Open Meetings appeal only[.]" 3 According to the University:
The March 1 decision to impeach the student was well reported and publicized in the March 8 edition of the Louisville Cardinal Newspaper (Cardinal) with which Ms. Bowman is affiliated. Ms. Bowman was permitted to attend the open session of the meeting on March 22, but she and all other non-senate members were excluded from the hearing, the session in which the review of information relevant to the charge and the student officer's response was received. The Cardinal had reported in its March 8 edition that the hearing was to take place on March 22 and, further reported, that part of the information to be presented concerned health problems of the student under review, and reported the student ". . . would not comment on the specifics of her health problems. . . ."
Citing KRS 61.810(1)(f), which provides that discussions of a public agency which might lead to the dismissal of a member are properly conducted in closed session as an exception to the Open Meetings Act, Ms. Koshewa argues that the session at issue was clearly conducted for such a purpose. While Ms. Hester had the right to request a public hearing, "it is clear, and was reported by The Cardinal, that she had no desire to make her personal health information, or any other student information for that matter, public." According to Ms. Koshewa, the closed session was also properly conducted under KRS 61.810(1)(k) "as a meeting which federal and state law specifically requires to be conducted in private." Because this involves "a student of the University disclosing private health information and any other information relative to her performance in her student capacity which had an impact on her ability to serve as an SGA officer," Ms. Koshewa further argues that the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its state counterpart, precludes the disclosure of personally identifiable health information contained in education records. To the extent that such information was likely to be revealed during the hearing, the closed session "was appropriately conducted under KRS 61.810(1)(k)." 4
In closing, Ms. Koshewa emphasizes that the SGA By-laws "do require, just as the [Open Meetings Act requires] of public bodies, that final action must be taken in open session which is precisely what happened here." As reported by The Cardinal in its March 29 edition, "[t]he vote was taken in open session. " Although some of the senators did comment regarding the type of evidence presented, none revealed specifics relative to Ms. Hester's health or other educational information. Assuming that the Open Meetings Act applies to the SGA and Student Senate at the University of Louisville, "it is clear that the actions herein met the statutory exceptions noted." In our view, the SGA's interpretation of KRS 61.810(1)(f) is a necessary corollary of governing authorities.
To begin, the response of the SGA appears to be procedurally deficient insofar as Dr. Gifford failed to issue a substantive response to Ms. Bowman's request within three business days. KRS 61.846(1) outlines procedural guidelines to which a public agency must adhere in responding to complaints. Upon receiving a complaint submitted pursuant to the Open Meetings Act:
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. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. 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.
KRS 61.846(1).
On appeal, Ms. Bowman alleges that Dr. Gifford, the presiding officer of the SGA, never responded to her complaint aside from confirming receipt. Attached to Ms. Bowman's letter is a copy of the e-mail verifying that a copy of the complaint was forwarded to Dr. Gifford on April 13, 2005, at approximately 3:07 p.m., which Dr. Gifford acknowledged in an e-mail on April 14, 2005, at approximately 10:20 a.m. Although Dr. Gifford's response on behalf of the SGA was not untimely unless three full business days had passed, this office is unable to determine whether Ms. Bowman impermissibly included Saturday and Sunday in calculating that "more than five days passed" with no response since the remainder of her correspondence is undated. However, this office received Ms. Bowman's letter of appeal on April 21, 2005, and the record reflects that the SGA did not respond until receiving the notification of Ms. Bowman's appeal distributed by this office on April 22, 2005. Assuming the SGA had not responded in writing prior to that time, an allegation which the SGA does not dispute, the SGA failed to comply with KRS 61.846(1).
As the Attorney General has consistently recognized with respect to the procedural requirements of the Open Records Act, in a statement which applies with equal force to the Open Meetings Act, the procedural requirements "are not mere formalities, but are an essential part of the prompt and orderly processing of an open [meetings complaint]." 93-ORD-125, p. 5; 03-ORD-190. In
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals articulated a demanding standard by which the adequacy of an agency's response must be judged:
The language of [KRS 61.880(1)/KRS 61.846(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents [or a complaint] . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
See 04-OMD-102; 04-OMD-029; 00-OMD-142; 97-OMD-43; 96-OMD-261. To the extent that the SGA failed to issue a written response within the designated time frame of three business days, the SGA committed a procedural violation of the Open Meetings Act.
Turning to the substantive issue presented, this office concludes that the SGA did not violate the Open Meetings Act by going into closed session for the purpose of discussing "the possible removal of one of its officers" at its meeting on March 22, 2005; such action falls within the zone of conduct authorized by KRS 61.810(1)(f). Our analysis begins with the fundamental principle 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 in conducting public business during a closed session, the General Assembly 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 possible "appointment, discipline, or dismissal of an individual employee, member, or student" will be discussed. KRS 61.810(1)(f). Resolution of this appeal turns on the meaning of this critical language, particularly the terms "dismissal" and "member."
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). Accordingly, "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 declared 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" to 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.
These decisions echo an earlier Open Meetings decision in which the Attorney General recognized:
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. Such potential exists here.
For this reason, 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.
These decisions firmly establish that an agency satisfies the requirements for conducting a closed session under authority of KRS 61.810(1)(f) by giving notice, in open session, that it is going into closed session pursuant to this provision in order to discuss either the appointment, discipline, or dismissal of an individual employee, student, or member (as is the case here), indicating which of these particular actions is contemplated. 05-OMD-011, p. 4, citing 99-OMD-49. To reiterate, matters only tangentially related to the appointment, discipline, or dismissal of an individual employee, member, or student cannot be discussed in closed session, no matters may be discussed during the closed session other than those publicly announced, and no final action may be taken. KRS 61.815; Id. Based on the limited evidence of record, the SGA seems to have observed the requisite formalities; The Cardinal does not challenge this position, focusing exclusively on the claim that removal of an elected officer/member is not an authorized topic of discussion under KRS 61.810(1)(f). Accordingly, the question becomes whether Ms. Hester qualifies as an employee, student, or member as required for invocation of KRS 61.810(1)(f).
For purposes of the Open Meetings Act, the term "member" is defined as "a member of the governing body of the public agency and does not include employees or licensees of the agency." KRS 61.805(4). Given her role as Academic Vice President, Ms. Hester is clearly a "member" of the governing body of the SGA to whom KRS 61.810(1)(f) applies. 5 Contrary to The Cardinal's assertion, the Open Meetings Act makes no distinction between "publicly elected officials" and other members. See 01-OMD-18, p. 7 (holding that the Richmond Board of Ethics properly invoked KRS 61.810(1)(f) to conduct a closed session for the purpose of having discussions which might have led to the imposition of discipline on the Mayor because its jurisdiction extends "both by statute and ordinance, to elected officials and employees of the city, including the Mayor"). In light of this determination, the outcome hinges on whether removal can properly be equated with "dismissal" in this context. 6
When called upon to render a decision involving statutory interpretation, our function is "to ascertain and give effect to the intent of the General Assembly" as reflected by the language employed.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). Our office is "not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable form the language used." Id. To determine legislative intent, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.2d 831, 835 (2000). In the absence of a statutory definition, which is lacking here, this office "must construe all words and phrases according to the common and approved uses of language" as mandated by KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker, Ky. App., 661 S.W.2d 447, 480 (1983); See also
Withers v. University of Kentucky, Ky. 939 S.W.2d 340, 345 (1997). 7
By its express terms, KRS 61.810(1)(f) authorizes discussions or hearings "which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student . . . " 8 On the facts presented, dismissal is implicated since the SGA, acting through the Student Senate, went into closed session for the purpose of deciding whether Ms. Hester should be removed from office. In this context, the relevant definition of "removal" is: "Dismissal, as from office." The American Heritage College Dictionary 1177 (4th ed. 2002); See
Kentucky Judicial Conduct Commission v. Woods, Ky., 25 S.W.3d 470, 473 (2000) (defining "Removal from office" as "Deprivation of office by act of competent superior officer acting within scope of authority"). Based on the "common and approved" meaning of the term removal, this office concludes that removal is the functional equivalent of dismissal in this context. In other words, removal is among those specific topics encompassed by the literal language of KRS 61.810(1)(f). Because Ms. Hester qualifies as a "member" of the SGA, whose removal or "dismissal" was being contemplated, the SGA properly relied upon KRS 61.810(1)(f) in holding the closed session at issue. To hold otherwise would elevate form over substance. 9
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.
Distributed to:
Mallory BowmanEditor in ChiefThe Louisville CardinalUniversity of LouisvilleHouchen's Bldg., Room 007Louisville, KY 40292
Denise GiffordVice President of Student AffairsUniversity of LouisvilleMS01-01 Grawmeyer HallLouisville, KY 40292
Angela D. KoshewaGeneral CounselUniversity of LouisvilleGrawmeyer Hall, Room 206Louisville, KY 40292
Footnotes
Footnotes
1 On both counts, The Cardinal is incorrect.
2 Contrary to The Cardinal's assertion, a favorable decision from this office does not necessarily result in a declaration that the meeting is "null and void," nor does this office have the statutory authority to "levy fines against the SGA if it is found in violation." Although the decision of the Attorney General "shall have the force and effect of law" pursuant to KRS 61.846(4)(b) unless an appeal to circuit court is filed within thirty days, authority to void the actions of a public agency and award costs, including reasonable attorneys' fees, and impose fines "not to exceed one hundred dollars ($ 100)" for each violation, is vested in the courts by operation of KRS 61.848(5) and 61.848(6), respectively.
3 Because the University concedes this point, further analysis of this threshold issue is unnecessary.
4 Because the instant appeal is resolved on the basis of KRS 61.810(1)(f), our office does not reach the FERPA issue, although a review of 97-OMD-139, upon which the SGA relies, as well as related authorities, appears to validate this position.
5 Although Ms. Hester is also a student of the University, her actions while serving in the capacity of Vice President resulted in the hearing rather than her actions as a student.
6 Section 3.9 of the SGA Constitution is entitled Removal of Officers. Subsection 3.9.1 provides:
Articles of impeachment may be submitted by any Student Senator against any officer of the SGA. By majority vote, the Student Senate may impeach (charge) any officer of the SGA. Removal from office shall require a three-fourths (3/4) vote of those members present and voting, providing this vote is at least a majority of the total number of voting Senators (excluding vacancies and including proxies).
To impeach means: "1a. To accuse. b. To charge (a public official) with improper conduct in office before a public tribunal." The American Heritage College Dictionary 694 (4th ed. 2002). As observed by Ms. Koshewa, the SGA voted to impeach Ms. Hester at the meeting held on March 1, 2005, whereas the hearing at which "information relevant to the charge" and Ms. Hester's response were reviewed was held during a closed session at the meeting on March 22, 2005. Subsection 3.9.1 (a) provides: "The vote on removal shall be held no sooner than two weeks after impeachment. " At issue here is the discussion or hearing which preceded this vote relative to Ms. Hester.
7 Absent a statutory definition, a dictionary may be consulted to ascertain the "common and approved" meaning of a term. See Young v. Commonwealth, 96 S.W.2d 670, 672 (1998).
8 Although removal is arguably the most severe form of discipline, a determination in this regard is unnecessary given our interpretation of the former term.
9 Further support for this conclusion can be found in federal case law. In McBryde v. Committee to Review Council Conduct and Disability Orders of the Judicial Conference of the United States, 264 F.3d 52, 65, 347 U.S.App.D.C., 302, 315 (2001), the United States Court of Appeals, District of Columbia Circuit, observed that the "thing to be done" by impeachment was "removal and disqualification, . . "