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 Todd County Board of Education violated the Open Meetings Act in failing to observe the requirements codified at KRS 61.815(1) that "shall be met as a condition for conducting a closed session" authorized by KRS 61.810, at a public meeting held on June 26, 2006, namely, KRS 61.815(1)(a), and by discussing matters outside the scope of the specific provision authorizing the closed session, KRS 61.810(1)(f), as prohibited by KRS 61.815(1)(d). Based upon the evidence of record, both questions must be answered in the affirmative.
On July 5, 2006, Melony Leazer of the Todd County Standard submitted a written complaint to Chairman Matthew Perry, presiding officer of the Board, "concerning action that took place at the [Board] meeting held June 26, 2006." According to Ms. Leazer, the Board "voted to go into a closed or executive session to 'discuss personnel. '" However, the Board "failed to announce whether the discussion [would] relate to the appointment, dismissal or the discipline of an individual employee, member or student. See KRS 61.815(1)(a)." In addition, the Board "discussed pending litigation during the closed session, and that reason was not announced publicly in the open session. See KRS 61.815(1)(d)." As a means of remedying the alleged violation, Ms. Leazer requested that the Board "discuss at a future meeting, in an open and public session, those matters that were discussed at the improperly called closed session June 26, 2006." In her view, any action taken as a result of the session "should be declared null and void. "
By letter dated July 10, 2006, Harold M. Johns, Board Attorney, denied Ms. Leazer's request on behalf of the Board. As observed by Mr. Johns:
It may very well be that my less than careful choice of a descriptor regarding the June 26 session closed session of the [Board] may have caused your concerns. Based upon the questions which you asked, it appears that you believe the reason for the closed session was a discussion of the [S]uperintendent's retirement. As you correctly point out[,] the [announced] purpose of the closed session was [] to discuss specific personnel. During our conversation, I described the purpose of the closed session as being to discuss pending litigation.
Under the circumstances presented to the Board either reason, under the Open Meetings Act, would have been appropriate. A former employee of the District has filed an EEOC complaint against the District. That could very accurately be described as discussing the appointment, dismissal or discipline of an individual employee or, as I chose to describe it, pending litigation. Whichever descriptor is utilized, either would be applicable and neither would appropriate for public discussion.
Finally, it appears that there exists some misunderstanding about the remedy which may be available when you allege on behalf of the media that a violation of the Open Meetings Act has occurred. The undersigned is unaware of any requirement that the public body discuss at a future meeting some matter simply because on behalf of the newspaper you allege they improperly discussed matters outside the scope of the public announcement of the purpose for the closed session. The statutory remedy is to void any action taken after inappropriate discussion. Further, since no action was taken, there is no action which a court could void. KRS 61.848(5). It should also be noted that this statutory subsection utilizes the phrase "substantial compliance."
In light of the foregoing, Mr. Johns argues that the Board "substantially complied with the meaning and spirit of the Open Meetings Act. " Because the Board's position is contrary to governing precedent, namely,
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, (1997), and subsequent decisions by the Attorney General, this office respectfully disagrees.
On July 17, 2006, Ms. Leazer initiated this appeal from the denial of her complaint regarding the closed session held on June 26, 2006, at which the Board discussed pending litigation, "a reason not announced in open session. " Quoting Mr. Johns' description of the purpose for the session, Ms. Leazer correctly notes that the "matter discussed may have been tangential to pending litigation, but pending litigation was not cited as the reason for the closed session. " 1 In Ms. Leazer's opinion, and ours, the Board failed to observe the formalities for going into closed session, as required by KRS 61.815(1)(a). To this extent, the Board violated the Open Meetings Act.
Upon receiving notification of Ms. Leazer's appeal from this office, Mr. Johns supplemented his response on behalf of the Board; attached to his response is a copy of the agenda for the meeting in question, Item VIII of which provides: "Consider going into closed session KRS 61.810(f), to discuss personnel. " As explained by Mr. Johns:
During the closed session the Superintendent presented to the board members materials which he had received from the EEOC regarding the complaint of a specific employee whose contract of employment had not been renewed. As you are aware, among the relief which can be sought in an EEOC complaint is reinstatement.
KRS 61.810(1)(f) provides an exception to the Open Meetings Act for discussions which might lead to the appointment of an individual employee. In light of the potential remedy available to this particular employee and the circumstances surrounding the employee's complaint it is not inaccurate to describe the purpose of the meeting as being to discuss action which could lead to the appointment of an employee. Further, the circumstances presented are intertwined with the non-renewal (dismissal) of a specific employee.
The question presented is not whether other exceptions apply but the applicability of this particular description of the EEOC matter as pending litigation was unfortunate. That description was inconsistent with the announced purpose of the closed session. Nevertheless, so long as the announced purpose is consistent with a statutory exception, and that was the purpose, the fact that more than one exception could be applicable does not render the closed session improper, nor does my misuse of the wrong exception change the purpose of the session or make the announced statutory basis incorrect.
In Mr. Johns' view, this is "not one of those egregious matters where a public body announces that it is going to discuss specific personnel and then discusses a plan for the compensation of all personnel. This is an incident where more than one exception to the [Act] applies and the basis cited is as appropriate as one of the other [exceptions]." Lastly, "it appears that Ms. Leazer misunderstands the remedies available when a violation occurs." Rejecting Ms. Leazer's proposed remedy, Mr. Johns correctly argues that "[u]nder no circumstances would it be proper for the Board to discuss the former employee's EEOC claim in a public meeting. The rules and regulations of the EEOC dictate confidentiality of such claims." Further, Mr. Johns is "unaware of any requirement the public body discuss at a future meeting some matter simply because, on behalf of the media, an allegation is made that improper discussion of matters outside the scope of the public announcement of the purpose for the closed session occurred." To the contrary, the "statutory remedy is to void any action taken after inappropriate discussion." In this case, "no action was taken so no action could be [voided] by a court of competent jurisdiction. KRS 61.848(5)."
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, which are codified at KRS 61.810(1)(a)-(l). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a)-(d), pursuant to which:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
In construing this statute, 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).
Of particular relevance here, the Supreme Court has observed:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. . . . The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session.
Ratliff, supra, at 924 (emphasis added). In our view, this reasoning is controlling on the facts presented. To reiterate, KRS 61.815 is aimed at promoting the "express purpose" of the Open Meetings Act, namely, "to maximize notice of public meetings and actions." Id. at 923. See also 94-OMD-78 (holding agencies which are not exempt per se from the requirements of the Open Meetings Act must observe these formalities before going into a closed session) ; 95-OMD-93 (Louisville/Jefferson County Revenue Commission violated KRS 61.815(1)(d) by discussing procedure for new employee search after discussing termination of employee in closed session conducted pursuant to KRS 61.810(1)(f)); 95-OMD-92 (holding that KRS 61.815 "clearly require[s] that certain things be done in a regular, open, and public session before the public agency can go into a closed or executive session" ); 99-OMD-46; 01-OMD-227; 02-OMD-153.
On appeal, the Board does not offer any evidence to refute Ms. Leazer's assertion that it failed to observe the formalities codified at KRS 61.815(1)(a) and (1)(d), but concedes as much, arguing instead that KRS 61.810(c) and (f) are interchangeable, and disputing the significance of failing to comply; neither argument is persuasive in light of Ratliff, the facts of which closely mirror those presented. 2 In Ratliff, three school administrators filed a complaint against the Floyd County Board of Education after it went into closed session for the purpose of discussing "personnel matters" pursuant to KRS 61.810(1)(f), but proceeded to discuss matters not publicly announced, including a school reorganization plan; the Board later argued that it closed the meeting in order to discuss "pending litigation. " Id. at 923. Noting that a "careful review" of the record confirmed that "the Board went into executive session to consider the reorganization plan and not pending litigation, " the Court found that the discussion "expanded the intended scope of the litigation exception and improperly concealed matters otherwise appropriate to the view of the public." Id. at 924. In the Court's view, the "mere fact that no objection was made by the public at the time the Board went into executive session cannot be used as an excuse for the improper discussion during the secret session. There is no requirement of public objection found in the statute." Id. Citing
Beckham v. City of Bowling Green, Ky. App., 743 S.W.2d 858 (1987), the Court held that discussions between members of the Board "concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct." Id. at 925. Such is the case here.
By its express terms, KRS 61.810(1)(f), upon which the Board relied, 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 such as the Board "complies with the requirements of KRS 61.815(1)(a) and 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, p. 3. 3 If, as Mr. Johns indicates, the individual who filed the complaint is a former employee, the discussion did not fall within the parameters of KRS 61.810(1)(f) and, therefore, was improper, even if the Board had otherwise complied with the Act. As noted earlier, "the exceptions provided by KRS 61.810 must be strictly construed. " Ratliff, supra, at 924.
Although Ms. Leazer prevails on the merits, the Attorney General is not statutorily authorized to invalidate or declare void action(s) taken by a public agency during the course, or as a consequence of, a meeting that did not conform to the requirements of the Open Meetings Act, even if the Board had taken any, nor can this office impose penalties; 4 such relief is only available in circuit court under KRS 61.848(1), (5), and (6). 97-OMD-090; 00-OMD-109. Our scope of review is narrowly defined at KRS 61.846(2), pursuant to which the Attorney General "shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." Having concluded that the Board violated the Open Meetings Act in failing to observe the formalities of KRS 61.815(1)(a) and (d) before going into closed session on June 26, 2006, based upon the written record, this office has fully discharged its duty.
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.
Melony Leazer Todd County Standard P.O. Box 308Elkton, KY 42220
Matthew Perry, ChairmanDistrict 3, Todd County Board of Education1941 Hammacksville Rd.Trenton, KY 42286
David A. Eakles, SuperintendentTodd County Board of Education804 S. Main StreetElkton, KY 42220
Harold M. Johns12 Public SquareP.O. Box 746Elkton, KY 42220-0746
Footnotes
Footnotes
1 See Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923-925 (1997) for the analysis employed by the Court, and, consequently, by this office (99-OMD-6 for example), in determining whether a public agency has properly invoked the "pending litigation" exception codified at KRS 61.810(1)(c). Although the Board could arguably have relied upon this exception, had it taken the necessary steps relative to KRS 61.815, Mr. Johns' belated reference to KRS 61.810(1)(c) did not suffice.
2 The Open Meetings Act "does not recognize a class of violations of lesser gravity than the remaining class of violations, and therefore capable of being dismissed as merely 'technical.'" 00-OMD-114, p. 2.
3 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.
4 In Floyd County Board of Education v. Ratliff, No. 2002-CA-001971-MR and Cross Appeal No. 2002-CA-001968-MR, 2004 WL 2316759, at 12 (Ky. App. Oct. 15, 2004), petition for rehearing denied, March 14, 2005, the Kentucky Court of Appeals concluded there was not "substantial evidence to support the circuit court's finding that the violations were not willful, but were 'the result of an honest mistake as to the application of the Open Meetings Act. '" In holding that the Board's violations were "willful," the Court observed:
Rather, the record is clear that the Board members willfully violated the Open Meetings Act to shield themselves from the public. The Board of Education indicated that it was going into executive session to discuss "personnel, " but then blamed the threat of litigation as the root of the session. However, even if the purpose had been to discuss "personnel, " the Board of Education was not permitted, by statute, to discuss the reorganization because it involved more than one person. For these reasons, we reverse the circuit court's ruling . . . In so holding, we are not stepping into the shoes of the fact finder, but are merely applying the law to the facts of this case.
Id. Although this unpublished opinion cannot "be cited or used as authority in any other case in any court of this state," in accordance with CR 76.28(4)(c), this opinion is nevertheless indicative of the view that may be adopted by the Court in a future published opinion, and presumably represents the current position of the Court on this issue.