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 Meade County Solid Waste Recycling Board violated the Open Meetings Act at its October 16, 2006, 1 meeting when it went into executive session pursuant to KRS 61.810(1)(f) for the stated purpose of discussing "individual personnel matters." For the reasons that follow, we find that the Board's reliance on the cited exception was misplaced.
On October 30, 2006, Wanda Terrell submitted a written complaint to Bim Wardrip, former Chairman of the Board, 2 in which she alleged that the Board improperly relied on KRS 61.810(1)(f) to "discuss[] eliminating a position and replacing the employee [Ms. Terrell] with [a] contract service." She alleged:
Subsequent to the closed session, four of the six board members initially present for the meeting, two having left during the closed session, a motion was made to employ a local bookkeeping service. After that passed, a motion was made to eliminate the position of bookkeeper.
Ms. Terrill characterized the issue discussed in closed session as a financial issue rather than a personnel issue within the meaning of KRS 61.810(1)(f). As a means of remedying the alleged violation, she proposed that "the action to terminate [the] employee be declared null and void and if the issue arises again that it be discussed in [an] open meeting." Ms. Terrell copied each member of the Board as well as the Board's attorney, Robert Heleringer, on her complaint.
In a response dated November 7, 2006, Mr. Heleringer denied the allegations of Ms. Terrell's complaint, asserting that "the matters dealt with in closed, executive session held during the Board meeting on October 16, 2006, pertained to a personnel matter and 'the possible dismissal of an individual employee. '" In support, he noted that in subsequent action taken in open session, a motion was made, and vote taken, "to eliminate the bookkeeper's position." Shortly thereafter, Ms. Terrell initiated this appeal, explaining that the "[t]he hiring of Livers Bookkeeping Service was not brought up in the meeting until they had the closed session . . . ." 3 She restated her view that the matters discussed in closed session were unrelated to the appointment, discipline, or dismissal of an individual employee. We agree.
Fundamental to an analysis of the propriety of a public agency's conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 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 for by law shall be strictly construed.
In interpreting this provision, 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 A2d 563, 564 (N.J. Super. Ch. 1982) paraphrasing Woodrow Wilson.
KRS 61.810(1)(f) authorizes public agencies to go into a closed session for:
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 [.]
With specific reference to this provision, commonly referred to as the "personnel exception" to the Open Meetings Act, this office has opined:
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, at page three, and OAG 90-125, at page two.
Prior to going into a 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; see also 97-OMD-124; 99-OMD-49; 99-OMD-94; 00-OMD-86.
These decisions echo an earlier open meetings opinion 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. It is for this reason that 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 that "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." 97-OMD-110, p. 3, cited in 99-OMD-94; see also, 00-OMD-086; 03-OMD-089; 06-OMD-211.
Although Ms. Terrell's employment status was tangentially related to the subject of the closed session discussion conducted at the Board's October 16 meeting, the primary focus of their discussion was, judging by the order in which the motions were made upon reentering open session, the hiring of a bookkeeping service. The elimination of Ms. Terrell's position was the unavoidable consequence that proceeded from the hiring of a bookkeeping service to fulfill her duties. Her reputational interest was implicated, if at all, only indirectly. Inasmuch as there is no exception in the existing Open Meetings Act for discussions relating to the hiring of a bookkeeping service, or, for that matter, the elimination of a current position, we find that the Board's reliance on KRS 61.810(1)(f) was misplaced, reflecting a liberal construction of the exception that is not supported by its express language or the rule of strict construction codified at KRS 61.800. 4
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.
Wanda Terrell2240 New Highland Church RoadBrandenburg, KY 40108
Mark HubbardVice ChairmanMeade County Solid Waste & Recycling Board750 Ready Mix RoadBrandenburg, KY 40108
Robert L. Heleringer7982 New LaGrange Road, Suite 1Louisville, KY 40222
Footnotes
Footnotes
1 The Solid Waste and Recycling Board is also known as the 109 Board inasmuch as authority for its existence is derived from Chapter 109 of the Kentucky Revised Statutes.
2 Mr. Heleringer first noted that Ms. Terrell's complaint was not addressed "to the proper 'presiding officer' . . ., Mr. Wardrip having resigned that position on October 16, 2006." This does not, in our view, represent an adequate rationale for rejecting her complaint, nor does it undermine the validity of the complaint. Mr. Wardrip's successor had not been named at the time Ms. Terrell submitted her complaint, and she should not have been foreclosed from doing so on that basis. Moreover, Ms. Terrell insured delivery of her complaint by copying all current members and the Board's attorney.
3 In her letter of appeal, Ms. Terrell also complained that during the period when the Board consisted of only five members, owing to two vacancies, "there were some illegal meetings with Mr. Shannon Loose, Mr. Heber Burchett, and Mr. James Harris." Because Ms. Terrell did not raise this issue in her original open meetings complaint, it is not ripe for review by this office. 06-OMD-211, 40 KAR 1:030 Section 1.
4 Assuming, arguendo, that KRS 61.810(1)(f) applied to the matters discussed in closed session, the record on appeal is devoid of proof that the Board complied with 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 was going into closed session to discuss either the appointment of, or the discipline of, or the dismissal of, an agency employee, indicating which of these particular actions was contemplated, as required under the Act as construed in OAG 90-125, 93-OMD-49, and 00-OMD-086.