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 Reorganization Subcommittee of the Planning and Project Review Committee of the Northern Kentucky District Board of Health violated the Open Meetings Act by discussing general personnel matters in contravention of KRS 61.810(f) during the closed session held on July 25, 2006. Because the limited evidence of record does not establish that the Subcommittee complied with requirements for going into closed session codified at KRS 61.815(1)(a), 1 nor that any discussion was restricted to matters within the narrow scope of KRS 61.810(1)(f), this office must conclude that the Subcommittee failed to comply with the Open Meetings Act; the fact no action was taken as a result of the closed session does not alter this conclusion.
By letter directed to Pat Dressman, "the presiding chair of the Reorganization [S]ubcommittee of the Planning and Project Review Committee of the Northern KY Independent District Health Board," on July 27, 2006, Hazel Bentley submitted a complaint regarding "an action that took place at the Reorganization [S]ubcommittee meeting held on July 25, 2006." According to Ms. Bentley, the Subcommittee "voted to go into closed executive session to discuss general personnel matters." Citing KRS 61.810(1)(f), Ms. Bentley argued that the Subcommittee "cannot legally go into a closed or executive session to discuss general personnel matters." To remedy this alleged violation, Ms. Bentley proposed that the Subcommittee "discuss at the next meeting, in an open and public session, those matters that were discussed at the improperly closed session on July 25, 2006."
On August 9, 2006, 2 John Gerard Patten responded to Ms. Bentley's complaint on behalf of his client, the Northern Kentucky District Board of Health. In relevant part, Mr. Patten advised Ms. Bentley she was "incorrect" in her "assumption that the closed session on July 25 was somehow illegal." Without further elaboration, Mr. Patten "represent[ed] to [Ms. Bentley] as the attorney that [he] told the group in closed session that they could not discuss general personnel matters because of the way the statute is written." As further observed by Mr. Patten, the "approved Minutes show what was discussed in closed session. Furthermore, no action was taken as a result of that closed session. " In conclusion, Mr. Patten suggested that Ms. Bentley review KRS 61.810(1) and OAG 84-49. 3
By letter dated September 29, 2006, Ms. Bentley initiated this appeal from the denial of her complaint. In addition to various allegations regarding the meetings held on August 23, 2006, September 13, 2006, and September 2, 2006, none of which are ripe for review, Ms. Bentley reiterated her views concerning the Reorganization Subcommittee meeting of July 25, 2006. More specifically, Ms. Bentley noted the Subcommittee "voted to go into executive closed session to discuss reorganization and general personnel issues." After the closed session, "it was stated they discussed reorganization, specific personnel positions and potential possible litigation." (Sic) In Ms. Bentley's view, the Board/Subcommittee is "using closed sessions inappropriately to deny [access to] public information." Upon receiving notification of Ms. Bentley's appeal from this office, Mr. Patten supplemented his initial response on behalf of the Board/Subcommittee. In relevant part, Mr. Bentley asserts that the Reorganization Subcommittee "is not a quorum of the full Board of Directors, and is a group making a preliminary study which will eventually result in recommendations to the Executive Committee and/or the full Board as to possible restructuring within the organization." 4
As a threshold matter, this office must address the District Board's contention that a quorum of the Board of Directors is required for the Open Meetings Act to apply, i.e., the Reorganization Subcommittee is not a public agency for purposes of the Open Meetings Act. Pursuant to KRS 61.805(2)(g), public agency means:
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created and controlled by a "public agency" as defined in paragraph (a),(b),(c),(d),(e),(f), or (h) of this subsection.
In short, the Northern Kentucky District Board of Health is a public agency; any committee or subcommittee, including the Reorganization Subcommittee, which is established, created, and controlled by it is therefore a public agency within the meaning of KRS 61.805(2)(g). See, e.g., Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that the presidential search committee created by action of the Board of Trustees of the University of Kentucky, a public agency created by statute, is itself a public agency) ; OAG 91-54 (holding that a committee created by the Mercer County Fiscal Court to consider proposals relating to planning and zoning is a public agency) ; 93-OMD-49 (holding that a three member grievance committee appointed by the Mayor of the City of Scottsville is a public agency) ; 95-OMD-124 (holding that an emergency medical services committee appointed by the Boyle County Judge/Executive is a public agency) ; and 98-OMD-96 (holding that a sign committee created by the City of Madisonville zoning administrator is a public agency) . The fact that the Subcommittee is comprised of less than a quorum of the members of the District Board; nor does the fact that the Subcommittee is not empowered to take action but instead operates in an advisory capacity.
Insofar as the Reorganization Subcommittee, standing alone, constitutes a public agency for purposes of the Open Meetings Act, this office considers the total composition of the Subcommittee itself, rather than the total composition of the District Board, in determining whether a quorum of the Subcommittee was present. Absent evidence to the contrary, this office assumes that a quorum of the Subcommittee was indeed present. If a quorum of the Subcommittee comes together to discuss public business, a meeting occurs "regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." KRS 61.805(1). Such meetings must be open to the public unless one of the exceptions codified at KRS 61.810(1) is properly invoked. To reiterate, our conclusion is not altered by the fact that the Subcommittee does not have authority to take action. By its express language, KRS 61.810(1) provides:
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, except for the following [enumerated exceptions].
(Emphasis added). In construing this provision, the Attorney General has "attached significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'" 98-OMD-94, p. 5.
Established, created, and controlled by the District Board, the Reorganization Subcommittee is a public agency within the meaning of KRS 61.805(2)(g); meetings of the Subcommittee at which a quorum of the Subcommittee members (as opposed to a quorum of the members of the District Board), is present, at which public business is discussed, must conform to the requirements of the Open Meetings Act. "Any other holding would clearly thwart the intent of the law." University of Kentucky Presidential Search Committee, supra, at 886. In light of this determination, the remaining question is whether the Reorganization Subcommittee violated the Open Meetings Act by discussing matters outside the scope of KRS 61.810(1)(f) during the closed session held on July 25, 2006.
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 from 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.
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" 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 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. Here, the Subcommittee did not establish which of the permissible subjects necessitated a closed session nor has the Subcommittee demonstrated that potential for such harm exists.
In keeping with prior decisions, 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. See OAG 90-125 (holding that a university committee appointed to study academic standards for student athletes could not discuss such matters in a closed session called pursuant to KRS 61.810(1)(f)); 94-OMD-103 (holding that discussing the possible creation of a new position is improper during a closed session) ; 97-OMD-80 (holding that a discussion regarding the appointment of new 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 a public agency improperly conducted a closed session for the purpose of discussing an employee's resignation) ; 99-OMD-221 (holding that an employee's claim for reimbursement could not be discussed in closed session) ; 00-OMD-113 (holding that any discussion by the city commission that was not restricted to whether disciplinary measures needed to be imposed on the police personnel who participated in the specified raid was not authorized by KRS 61.810(1)(f) and any discussion relating to the executive order was not properly the subject of an executive session) .
As evidenced by this line of authority, 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 specific reason for the closed session (which of these particular actions is contemplated), and which of the exceptions codified at KRS 61.810 is being invoked to authorize the closed session (KRS 61.810(1)(f)). 5 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 Subcommittee of the District Board if those matters were, in fact, discussed.
In his initial response, Mr. Patten relied on the minutes of the meeting in question as well as the fact no action was taken in defending the position of the District Board; the latter argument is not persuasive for the reasons previously indicated. Equally insufficient are the minutes, which, in relevant part, read as follows: "Mr. Scott Kimmich reported that the Subcommittee discussed restructuring of the agency and specific personnel as it relates to the agency and possible litigation. He added that no action was to be taken at this time." At best, this summary describes a matter tangentially related to possible appointment, discipline, or dismissal of an individual employee with no indication of which action is being contemplated. In other words, the specificity envisioned by the General Assembly is lacking. On appeal, the District Board/Subcommittee relies exclusively upon the faulty premise that a quorum of the District Board, rather than a quorum of the Subcommittee, needed to be in attendance for the Open Meetings Act to apply, describing the Subcommittee as a "group making a preliminary study which will eventually result in recommendations to the Executive Committee and/or the full Board as to possible restructuring within the organization." While the discussion at issue may very well have fallen within the parameters of KRS 61.810(1)(f) and/or otherwise qualified for protection under KRS 61.810(1), neither the responses provided by the Subcommittee nor the minutes reflect as much; this office must rely upon the written record exclusively in rendering a decision per KRS 61.846(2).
Because the Subcommittee apparently failed to comply with requirements for going into closed session codified at KRS 61.815(1)(a), and has not established that discussion was restricted to matters which might lead to the appointment, discipline, or dismissal of personnel of that particular agency, this office must conclude that the Subcommittee "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Ratliff, supra, at 924. 04-OMD-225; Accord 03-OMD-089, p. 13 (holding that a public agency improperly relied upon KRS 61.810(1)(f) as the basis for having a discussion concerning various proposals for reorganizing the agency, two of which would have resulted in dismissal of an official, inasmuch as "the dismissal of an individual employee was not the focus of the closed session discussion but was instead an unavoidable consequence which would flow from selection of two of the three proposals, and [the official's] reputational interest was implicated, if at all, only indirectly"). Although the Subcommittee appears to have acted in good faith, it violated the Open Meetings Act on July 25, 2006, to this extent.
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 KRS 61.815(1) provides:
Except as provided in subsection92) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
(b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
2 Because Ms. Bentley submitted her written complaint to "the presiding officer of the public agency suspected of the violation," in compliance with KRS 61.846(1), the Subcommittee had three business days in which to respond. To the extent the Subcommittee failed to issue a written response within this period, the Subcommittee violated KRS 61.846(1).
3 Contrary to Mr. Patten's implicit assertion, the interpretation of KRS 61.810 found in OAG 84-49 is no longer valid. In 1992, the General Assembly enacted KRS 61.810(2). Since its enactment, KRS 61.810(2) has been the subject of multiple decisions issued by this office; 04-OMD-225, pp. 9-12, contains the analysis employed by this office in determining whether a public agency has violated this provision.
4 With regard to Ms. Bentley's allegations concerning the Executive Committee meeting and the full Board meeting of September 13, 2006, Mr. Patten notes that "both of those closed sessions were primarily conducted by" him; Mr. Patten "reported to both the Executive Committee and to the full Board the pending status of two lawsuits against the Health Department, one in State Court and one in Federal Court." In reference to the Reorganization Subcommittee meeting of September 22, 2006, Mr. Patten clarifies that he "was making a report to the committee about a specific personnel issue." As previously indicated, Ms. Bentley did not make these allegations of wrongdoing in her initial complaint so the issues are not ripe for review; our analysis focuses exclusively on the actions of the Subcommittee during the closed session held on July 25, 2006.
5 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.