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 Kentucky Personnel Board violated the Open Meetings Act at its June 17, 2005, regular meeting when it went into executive session to discuss the following: 1. a motion for declaratory relief filed by the Transportation Cabinet; 1 2. whether to continue the Board's own investigation of the complaint; 3. whether the Attorney General should be directed to continue his investigation of the identical complaint previously filed with his office and; 4. whether to assign two members of the Personnel Board to assist in the Board's investigation. For the reasons that follow, we find that the Board's reliance on KRS 61.810(1)(j) was misplaced, and that the closed session discussion of these topics violated the Open Meetings Act.
On June 23, 2005, Jon L. Fleischaker submitted a written complaint to John Chowning, Chair of the Personnel Board, on behalf of his client, The Courier-Journal, and reporter Mark Pitsch. In that complaint, The Courier challenged the Board's reliance on, inter alia, 2 KRS 61.810(1)(j) as the basis for its closed session, asserting that "[d]iscussions regarding declaratory relief in the form of an interpretation of the Merit Law does not fit within this, or any, exception." The Courier also objected to the Board's decision to exclude the public from its discussion of its own investigation into alleged merit law violations, the Attorney General's investigation into those alleged violations, and the participation of two Board members in the investigation. As a means of remedying the alleged open meetings violations, The Courier proposed that the Board "acknowledg[e] the . . . violation, issu[e] an apology for the violation, and disclos[e] the minutes, recordings, and transcripts of the closed session. "
In a response dated June 28, 2005, Personnel Board Executive Director Mark A. Sipek denied that the Board violated the Open Meetings Act in conducting closed session discussions of these topics. Fundamental to the Board's position was its belief that its "ongoing investigation relates . . . to the 'Petition to Investigate' filed by Doug Doerting, . . . [and] to several individuals who have filed appeals with the [Board] on matters that are related to the ongoing investigation." It was the Board's position that because KRS 18.075 authorizes it "to hear appeals and make investigations," and because "discussion of issues related to the investigation" of the Transportation Cabinet may "directly affect[] the rights" of these individuals, as well as the Cabinet, and the outcome of the appeals, "the investigation itself is an adjudication" which may properly be discussed in closed session pursuant to KRS 61.810(1)(j).
As additional support for its position that secrecy is mandated in the conduct of discussions related to its ongoing investigations, the Board invoked KRS 18A.095(21), prohibiting Board members from publicly commenting about a pending or impending proceeding before the Board, but authorizing Board members to "mak[e] public statements in the course of their official duties . . . ." Specifically, the Board maintained that a "full and frank" discussion concerning the funding of its own investigation, and "whether and how the Attorney General should continue with [his] investigation," could only be conducted in a closed session insofar as the discussion relates to "real appellants who have real claims before the Personnel Board." So too, the Board argued, discussions relating to the participation of two Board members in the investigation could affect the outcome of the pending appeals. Rejecting The Courier's "illogical conclusion . . . that the Personnel Board could not discuss in closed session any matter relating to the ongoing investigation in which [it] is involved," the Board concluded that "these matters are very sensitive and must necessarily involve a full and frank exchange of ideas between . . . members as the investigation continues and unfolds." Citing 05-OMD-107 (affirming Kentucky Board of Medical Licensure's reliance on KRS 61.810(1)(j) to conduct closed session deliberations concerning grievance filed against a physician).
Having considered the arguments advanced by the parties in the record on appeal, including The Courier's written complaint and the Board's written denial, as well as The Courier's letter of appeal and the Board's supplemental response, we decide that the law requires that discussion of the Cabinet's motion, the efficacy of the investigations of the Board and the Attorney General, and administrative support and staffing of the Board's investigation should be held in public session.
"[T]he formation of public policy is public business and shall not be conducted in secret. " KRS 61.800. 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[.]
Accord,
Jefferson County Board of Education v. Courier-Journal and Louisville Times Co., Ky. 551 S.W.2d 25, 27 (1977) (holding that the Open Meetings Act "is designed to require governmental agencies to conduct the public's business in such a way that the deliberations and decisions are accomplished in an atmosphere wherein the public and the media may be present");
Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that "the right of the public to be informed transcends any loss of efficiency"); see also, 1974 HB 100 Preamble (declaring that "[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").
Recognizing that there are circumstances that may warrant a public agency's decision to conduct the people's business in closed session, the General Assembly has enacted thirteen exceptions to the Open Meetings Act. Among those excepted subjects deemed proper for closed session discussion are deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments. In interpreting this, along with the remaining exceptions, Kentucky's 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,"
E. W. Scripps Co. v. City of Maysville, Ky. App., 750 S.W.2d 450 (1990) cited in
Floyd County Board of Education v. Ratliff , Ky., 955 S.W.2d 921, 923 (1997), and that:
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. "[T]he exceptions to the open meetings laws," the Court concluded, "are not to be used to shield the agency from unwarranted or unpleasant public input, interference or scrutiny." Id. at 924. Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to "open government openly arrived at."
Maurice River Board of Education v. Maurice River Teachers, 455 A.2d 563, 564 (N.J. Super. Ch. 1982) paraphrasing Woodrow Wilson.
By its express terms, KRS 61.810(1)(j) authorizes closed session "[d]eliberations of judicial and quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representative, nor any other individual not a member of the agency's governing body or staff is present . . . ." With specific reference to this provision in the particular context of deliberations of the Personnel Board, this office has opined:
[W]hen the Personnel Board is deciding a case involving the complaint of an applicant or an employee it is performing a quasi-judicial function and after the evidence is received in open session it may go into closed session to deliberate its decision. As a fact finding and adjudicating body, similar to a jury, it needs to have a free and uninhibited exchange of views among the members, recalling the evidence and discussing its implications and its weight. Such cannot be had in the presence of opposing lawyers, interested parties, members of the press, and the public generally.
OAG 83-20, p. 3. Continuing, the Attorney General admonished:
Except when the Board is deliberating a decision on a particular case involving an individual or discussing a matter which is [otherwise] exempt under KRS 61.810 its meetings are required to be open to the public under the provisions of KRS 18A.070(3).
The latter provision, which mandates that "[a]ll meetings [of the Personnel Board] shall be open to the public as provided in KRS 61.805 or 61.850," is clearly indicative of the legislative resolve that openness in the proceedings of the Personnel Board must be the rule rather than the exception. (Emphasis added.) The Board points out that KRS 18A.095(21) requires Board members to "abstain from public comment about a pending or impending proceeding before the Board." The Courier argues that this provision is intended to restrict member comment on Board proceedings outside the public forum in which those proceedings are statutorily required to be conducted. We decide for the purposes of our analysis in this appeal that KRS 18A.095(21) is limited by KRS 18A.070(3) and that KRS 18A.070(3) is controlling.
The Board also contends that public discussion of these topics might affect the appeals now pending before the Board. The courts have repudiated the use of the exceptions to the Open Meetings Act to embrace "general discussions of 'everything tangential to the topic'" for which the exception might otherwise have properly been invoked. Floyd County Board of Education v. Ratliff, above at 924, citing Jefferson County Board of Education v. Courier Journal, above at 28. From the record before us, we conclude that the topics discussed by the Personnel Board in its June 17 closed session were tangential to the pending appeals and capable of discussion without involving information about specific cases that in any case will be heard in open session.
KRS 61.810(1)(j) only exempts" [d]eliberations of judicial and quasi-judicial bodies regarding individual adjudications," which in this context means "deciding a case involving the complaint of an applicant or employee." OAG 83-20, p. 3. The Board acts in a quasi-judicial capacity after taking evidence, in a particular case, in open session. It is at this juncture that the Board, like a jury, "needs to have a free or uninhibited exchange of views among the members, recalling the evidence and discussing its implications and weight." Id.
The topics discussed in the June 17 closed session do not fall within the parameters of KRS 61.810(1)(j) insofar as they did not involve deliberations regarding individual adjudications. We do not believe that the legislature intended general discussions concerning whether to grant a motion seeking interpretation of a statute, whether to continue an investigation or direct that another agency continue its investigation, and whether to assign Board members to the investigation, to be conducted in closed session, notwithstanding the effect they might have on pending appeals. Instead, we believe that such discussions constitute the formation of non-adjudicative public policy and therefore precisely the type of discussion that the law requires be made in public. Accord,
Yeoman v. Commonwealth, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998) (holding that "[p]ublic business is the discussion of the various alternatives to a given issue about which the board has the option to take action"). Because 05-OMD-017 involved deliberations resulting in the dismissal of a complaint filed against an individual, rather than general discussions of policy matters, we believe that decision is contrary to the Board's position, and that the Board's reliance on the decision is therefore misplaced.
We continue to ascribe to the view that unless the Personnel Board is "deliberating a decision on a particular case involving an individual," within the meaning of KRS 61.810(1)(j), or "discussing a matter which is [otherwise] exempt under" one or more of the twelve remaining exceptions, "its meetings are required to be open to the public under the provisions of KRS 18A.070(23)" and the Open Meetings Act. OAG 83-20, p. 3.
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:
Jon L. FleischakerDinsmore & Shohl, LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
John Chowning, ChairmanKentucky Personnel Board28 Fountain PlaceFrankfort, KY 40601
Mark A. SipekExecutive Director and SecretaryKentucky Personnel Board28 Fountain PlaceFrankfort, KY 40601
Footnotes
Footnotes
1 The motion was in response to a complaint filed with the Board that accused the Cabinet of practicing political favoritism and political discrimination in making personnel decisions. The motion requested an interpretation of KRS 18A.140 that prohibits political favoritism and political discrimination with respect to employment in the state government classified service and of KRS 18A.990 that fixes the penalty for violating KRS 18A.140.
2 The minutes of the June 17 meeting reflect that the Board retired to a closed session "[p]ursuant to KRS 61.810(1)(c), (f), (j), and (k)" to discuss "proposed or pending litigation against or on behalf of the Board; and deliberations regarding individual adjudications and investigations." Apparently, the Board employed a shotgun blast approach relative to invocation of the exceptions purportedly authorizing the closed session, hoping that one of the exceptions invoked would "hit the mark."