Request By:
Dana L. Long, Reporter
Todd County Standard
102 Public Square
Elkton, KY 42220Kent Knight
Todd County Judge/Executive
P.O. Box 355
Elkton, KY 42220Harold M. Johns
Todd County Attorney
12 Public Square
P.O. Box 746
Elkton, KY 42220-0746
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether Todd County Fiscal Court violated the Kentucky Open Meetings Act by discussing general personnel matters not authorized by KRS 61.810(1)(f) during the closed session conducted at the regular meeting held on April 24, 2006. Although the conflicting evidence of record precludes this office from conclusively resolving the question presented, the Fiscal Court appears to have acted in a manner consistent with KRS 61.810(1)(f). If Todd County Fiscal Court engaged in a discussion of general personnel matters, such as salary increases and equipment issues unrelated to the possible appointment, discipline, or dismissal of a public employee, the discussion was improper to this extent.
By undated letter directed to Kent Knight, Todd County Judge-Executive, Reporter Dana L. Long submitted a complaint regarding action taken by the Fiscal Court at the meeting held on April 26, 2006. According to Ms. Long, the Court "voted to go into a closed session to discuss personnel matters regarding the disciplinary action of some county employees affiliated with the Todd County Emergency Services." However, it came to her attention "that matters were discussed that did not deal strictly with specific personnel matters"; Ms. Long was told "that a raise was promised to road department employees that would go into effect on July 1, 2006, and that equipment concerns of the road department were also discussed at length during the closed session. " Citing KRS 61.810(1)(f) , Ms. Long correctly noted that such general personnel matters "cannot be discussed in closed sessions, only personnel matters dealing with the appointment, discipline, or dismissal of an individual employee. " Also, "in open session, notice should have been given of the general nature of the business to be discussed in closed session, the reason for closed session, and the specific provision of KRS 61.810 that authorize [d] the closed session" pursuant to KRS 61.815(1)(a). Accordingly, Ms. Long requested that the Fiscal Court discuss at its next regular meeting, "in an open and public session, those matters that were improperly discussed at the closed session on April 24, 2006."
On May 2, 2006, Judge/Executive Knight responded, in relevant part, as follows:
The purpose of the meeting was to gather information regarding complaints which had been received concerning the conduct of a particular county employee. After the information was obtained from the county employee who was interviewed during the closed session, the undersigned exercising the executive authority vested in my office took appropriate personnel action the next morning. That action did not require any affirmative vote of the Fiscal Court.
As the minutes will reflect, as a result of the open meeting no fiscal court action was taken. KRS 61.810(1)(f) specifically addresses the discussion of public business and the taking of action. The undersigned cannot control statements made by a person after leaving a meeting. Since no action was taken, and the undersigned cannot control statements made by third parties, it is not believed necessary to conduct any further discussion in this regard.
* * *
Finally, as you are undoubtedly aware, a closed meeting of a governmental agency is that. As a member of the Fiscal Court it is inappropriate for the undersigned to comment at all upon the discussions held during a closed meeting.
In an undated letter received by this office on May 22, 2006, Ms. Long initiated this appeal. According to Ms. Long, the Court entered into closed session to discuss "employee matters regarding the county ambulance service." Approximately halfway through the session, "the Emergency Services Director left the meeting and a road department employee entered to discuss an employee issue"; however, the employee advised Ms. Long that "general pay raises and equipment issues were discussed for the majority of the closed session. " In Ms. Long's opinion, this discussion violated KRS 61.810(1)(f). Attached to Ms. Long's appeal are copies of articles which appeared in the Todd County Standard (written by Ms. Long), none of which constitute objective proof that Todd County Fiscal Court discussed issues beyond the scope of KRS 61.810(1)(f).
Upon receiving notification of Ms. Long's appeal from this office, Harold M. Johns, Todd County Attorney, responded on behalf of the Fiscal Court, noting that Ms. Long's allegation is "based upon the statement of a county employee who was interviewed by the Fiscal Court regarding the abuse of equipment at the county road garage by various county employees. " At the conclusion of that interview, that particular employee "left the closed meeting and made an announcement that he had, on behalf of county employees negotiated a pay raise." Such statements "are outside the control of the Fiscal Court [and] the County Judge/Executive." As confirmed by Mr. Johns, the purpose of the closed session was to discuss the "hiring, firing or disciplinary action regarding specific employees of both the emergency services department and the road department." In fact, the Judge/Executive "suspended a road department employee for ten (10) days without pay" on April 25, 2006, "as a result of the information provided by the interviewed employee."
As Mr. Johns correctly observes, Ms. Long's allegation "presumes the accuracy of the statement made by the employee who was interviewed regarding the misuse and abuse of the road department equipment." Although the employee "may or may not have understood the purpose of the discussions regarding the equipment," his information led to the suspension of a particular employee. According to Mr. Johns, "[e]very effort is made to follow the requirements of the Open Meetings Act" ; there "seems to be some 'swearing contest' between the Judge/Executive, the county employee who was interviewed and the [Ms. Long]." However, the Judge/Executive reporting his personnel action at the regular meeting "should satisfy [Ms. Long's] concerns." 1 In Mr. Johns' view, "[r]easonable people must recognize that individuals have different perceptions of matters discussed." Based upon the foregoing, Mr. Johns respectfully submits that Todd County Fiscal Court did not violate the Open Meetings Act and Ms. Long should be so advised.
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 used by 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. Both the General Assembly and the judiciary have thus demonstrated their commitment to "open government openly arrived at." 00-OMD-113, p. 2 (citation omitted).
By its express terms, KRS 61.810(1)(f) authorizes public agencies to enter 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 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; 99-OMD-221 (holding that employee's claim for reimbursement could not be discussed in closed session) ; 99-OMD-133 (holding that public agency improperly discussed employee's resignation during closed session) ; 94-OMD-103 (holding that discussing possibility of creating a new position during closed session is not proper); OAG 90-125 (holding that university committee appointed to study academic standards for student athletes could not discuss such matters during closed session under authority of KRS 61.810(1)(f)).
As evidenced by this line of decisions, a public agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing, in open session, the general nature of the business to be discussed in closed session (appointment, discipline, or dismissal of an individual employee) , the reason for the closed session (which of these particular actions is contemplated), and the specific provision of KRS 61.810 authorizing the closed session (KRS 61.810(1)(f)). 2 In her complaint, Ms. Long references the requirements of KRS 61.815(1)(a) without elaboration, 3 focusing primarily upon her claim that "a raise was promised to road department employees that would go into effect on July 1, 2006, and that equipment concerns of the road department were also discussed at length during the closed session. " In his response, Judge/Executive Knight relies partially upon the fact no "action was taken" in defending the actions of the Fiscal Court at the meeting in question. To clarify, the Open Meetings Act prohibits unauthorized discussions as well as final action. 00-OMD-113, p. 4. In other words, the fact no final action was taken relative to the general personnel matters allegedly discussed in closed session does not mitigate the violation committed by the Fiscal Court if those matters were, in fact, discussed.
On appeal, Ms. Long observes that an employee "brought to [her] attention that general pay raises and equipment issues were discussed for the majority of the closed session, " though the Fiscal Court went into closed session "to discuss personnel matters regarding the disciplinary action of county employees. " Responding on behalf of the Fiscal Court, Mr. Johns acknowledges that a county employee was interviewed regarding the abuse of equipment by various employees; the parties further agree as to the nature of his subsequent claims. In short, the dispute centers on the veracity of those claims. Noticeably absent from the record is concrete evidence to validate the unsubstantiated assertions upon which Ms. Long relies. According to Mr. Johns, the Judge/Executive suspended an employee for "ten (10) days without pay as a result of the information provided by the interviewed employee"; this is not determinative standing alone, but does support the position of the Fiscal Court. While the employee "may or may not" have understood the purpose of the discussions concerning the equipment, as noted by Mr. Johns, the Fiscal Court did not violate the Act if the actual purpose of the closed session was to determine whether the "appointment, discipline, or dismissal of an individual employee" was appropriate. 4
Because the evidence of record does not establish that Todd County Fiscal Court "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public[,]" this office is unable to conclude that Todd County Fiscal Court violated the Open Meetings Act. Ratliff, supra, at 924. A "swearing contest" or factual dispute, like the one which culminated in this appeal, is simply not justiciable in the context of an Open Meetings appeal. See 03-OMD-035.
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 proceeding.
Footnotes
Footnotes
1 Relying upon 03-ORD-035 (the role of this office in adjudicating an open meetings dispute is a narrow one), Mr. Johns correctly notes that our review is confined "to the issue of whether the agency violated the Open Meetings Act and not remedial measures which it might implement." In other words, the Act "does not provide for the remedy demanded by Ms. Long."
2 A public agency is not required to identify by name the employee or employees who will be discussed, nor is the agency restricted to discussing one employee at a time. 00-OMD-113, p. 4. Inasmuch as joint action by a group of employees may result in joint disciplinary action or dismissal by an employer, the Attorney General has expressly so held. 99-OMD-49, p. 4. To hold otherwise would place unjustifiable impediments on the ability of a public agency to effectively and efficiently discuss join misconduct of public employees which might warrant disciplinary action or dismissal. Id.
3 To the contrary, Ms. Long acknowledges the Fiscal Court "voted to go into a closed session to discuss personnel matters regarding the disciplinary action of some county employees affiliated with the Todd County Emergency Services." With the possible exception of failing to provide notice of the specific provision authorizing the session, the Fiscal Court appears to have complied with KRS 61.815(1)(a).
4 In her letter of appeal, Ms. Long requests "a ruling, stating if the meeting was in fact illegal and what if any fines or penalties the court should receive[.]" Pursuant to KRS 61.848(6):
Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.805 to 61.850, where the violation is found to be willful, may be awarded costs, including reasonable attorneys' fees, incurred in connection with the legal action.
Only the circuit court where the public agency has its principal place of business or where the alleged violation occurred has jurisdiction to enforce the provisions of the Open Meetings Act. KRS 61.848(1).