Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Hurstbourne violated the Open Meetings Act by failing to observe the formalities for conducting a closed session. Because the record on appeal reflects noncompliance with the requirements of KRS 61.815(1)(a), in going into closed session under KRS 61.810(1)(f) , we find that the City violated the Act at the December 12, 2006, meeting of the City Commission.
Furman F. Wallace submitted a written complaint to the Mayor of the Hurstbourne City Commission in which he stated that the minutes of the December 12, 2006, regular meeting reflect that the Commission went into closed session "based on KRS 61.810(1) regarding personnel. " He alleged the Commission violated the Open Meetings Act and the requirement that the reason for holding a closed session be spelled out in full. He further complained:
In addition, the reason given for going into closed session, "regarding personnel" was not a valid reason for a closed session or executive session. The statute quoted, KRS 61.810 allows only twelve categories of exceptions to open meetings. It also requires that the specific exception be spelled out and even spell out which of the items under the exception will be discussed. For example, "The closed meeting will be under Section (1) (f) of KRS 61.810 and the discussion will pertain to the appointment of a specific employee . . . ." The discussion "regarding personnel" is not covered under any of the exceptions from the Open Meetings Act. Therefore, the Commission went into closed session in violation of the law for three different reasons. It did not specify the statute exactly; it did not state clearly as to what was to be discussed; it also discussed a topic not covered under the statute.
As a means of remedying these alleged violations, Mr. Wallace proposed that the Commission follow the dictates of a 2004 Attorney General's Open Meetings Decision that found that the City of Hurstbourne had violated the Open Meetings Act; that the City disclose the topics and any action taken or as a result of the closed session and an admission of guilt in violating the law, be published in the minutes of the first meeting of the Commission following acceptance of this remediation; and the Commission will also prepare a statement, similar to the one in the minutes, including an admission of the violation, to be included in the next mailing to the residents of the City.
By letter dated January 12, 2007, Hurstbourne City Attorney Foster L. Haunz responded to the allegations of Mr. Wallace's complaint. In his response, Mr. Haunz stated:
We feel there has been no violation of the Open Meetings Law as you allege. You were not present and cannot know first hand the procedures used at the subject meeting. A general discussion of "personnel" is not cause for an executive session. At the December 12, 2006 meeting, there was a closed session to discuss promotion and terms of employment of an individual employee of the City. I read verbatim the provisions of KRS 61.810(1)(f) "for discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee . . ." I have KRS 61.810 stapled to the back of the notebook used by me at all city meetings. How that was summarized in the minutes may be a slightly different story.
?
As to your remedial demands, we do follow the dictates of the Office of the Attorney General as well as those relevant statutes.
There will be no admission of guilt, as that implies wrongdoing and there was none.
The balance of your suggested remedial measures are nothing less than vindictive assertions on your part which would not address the matter, even if the facts were different.
On March 29, 2007, Mr. Wallace initiated the instant appeal, reiterating in general, arguments set forth in his original complaint.
After receipt of notification of the appeal, Mr. Haunz, by letter dated March 31, 2007, provided this office with a supplemental response addressing the issues raised in the appeal. In his response, he advised:
It was because of Mr. Wallace's earlier charge of Open Meetings violations by Hurstbourne that I now carry with me at all times, in a special notebook I use for each individual city, a copy of both KRS 61.810 (Exceptions to Open Meetings Laws) and Kentucky Constitution, Section 228 (Oath of Office). When a motion is made to go into executive session, I generally complete the wording of the motion so that it will meet all technicalities, here citing exactly KRS 61.810(1)(f), and further cite verbatim the provisions of that section of the statute and its application to the present situation. I now notice that subsection "(f)" was omitted by the secretary present but on my oath as an attorney in good standing in the Commonwealth of Kentucky, I know it was said. All present at the meeting would have heard it. Mr. Wallace was not present and therefore did not hear it.
?
Mr. Wallace fails to draw the Attorney General's attention to what happened according to the minutes after the closed session. This is shown on page 2, on the third and fourth paragraphs. It is noted that motion was made, seconded and carried that the Commission to go back into regular session. Then "Mayor English made the motion that the contract with the City Clerk/City Administrative Officer be approved as presented with the figures for the accrual of the salary, vacation, and sick days approved...." This shows that the reason for the closed session was followed exactly.
We first address whether the Commission violated the Open Meetings Act when it went into closed session "based on KRS 61.810(1) regarding personnel. " For the reasons that follow, we conclude that the record on appeal does not reflect strict compliance with the requirements of KRS 61.815(1)(a), in going into closed session under KRS 61.810(1)(f).
KRS 61.815(1)(a) provides:
(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;
With reference to compliance to KRS 61.815(1)(a), this office has stated that it is well established that:
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.
The minutes of the Commission's December 12, 2006, meeting, which were approved by the Commission at its January 9, 2007, meeting, states in relevant part:
EXECUTIVE SESSION
Commissioner English then made the motion the Commission go into executive session based on KRS 61.810(1) regarding personnel. His motion was seconded by Commissioner Hays. Motion carried. Mayor English asked those in attendance to leave the room until the executive session was completed.
After the executive session was completed Commissioner Hays moved that the Commission go back into regular session. His motion was seconded by Commissioner Wells. Motion carried.
The minutes of the Commission's December 12, 2006, meeting do not reflect strict compliance with the requirements of KRS 61.815(1)(a), in going into closed session under KRS 61.810(1)(f). A public agency speaks through its minutes as to actions taken. 05-OMD-077; OAG 80-421. The minutes do not reflect that the Commissioner made the motion to go into closed session under authority of KRS 61.810(1)(f) 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 relative to a specific unnamed person or persons. To the extent that the Commission failed to strictly comply with the requirements for conducting a closed session, we find that it violated the Open Meetings Act at its December 12, 2006, meeting. 01-OMD-181; 03-OMD-047.
Mr. Haunz, in his supplemental response, stated that when a motion is made to go into executive session, he generally completes the wording of the motion so that it will meet all technicalities of KRS 61.815(1), for example, KRS 61.810(1)(f) , citing verbatim the provisions of that section of the statute and its application to the present situation. He further stated how the motion was summarized in the minutes "may be a slightly different story. " If, in fact, the Commission followed the requirements of KRS 61.815(1)(a) in invoking KRS 61.810(1)(f) and the minutes do not accurately reflect that fact, the minutes are deficient and constitute a violation of KRS 61.835 which requires "the minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings . . . ." KRS 61.835.
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.