Request By:
Jeremy S. Rogers
Lois Gray
Deborah T. Wilkins
Scott D. Laufenberg
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Western Kentucky University Board of Regents violated the Kentucky Open Meetings Act in conducting a closed session under authority of KRS 61.810(1)(f) during the meeting held on January 25, 2008, for the announced purpose of discussing personnel matters. During the closed session, the Director of Athletics "brief[ed]" the Board on the decision to dismiss the men's soccer coach due to his position being eliminated as a result of the soccer program being eliminated. Neither the decision of the Director to "brief" the Board prior to notifying the coach due to his longevity in the position and in deference to his privacy interests, nor the lack of action by the Board in the closed session following the impermissible discussion justifies reliance on KRS 61.810(1)(f). Insofar as the Board admittedly went into the closed session for a "briefing" on the "decision" by the Director of Athletics to eliminate the position of soccer coach and the resulting dismissal of that individual employee, the Board necessarily discussed matters beyond the narrow scope of KRS 61.810(1)(f), pursuant to which only discussions "which might lead" to appointment, discipline, or dismissal are permitted.
By letter directed to Lois Gray, Board Chair, on February 5, 2008, News Editor Corey Paul submitted a complaint on behalf of The College Heights Herald asserting the "Board of Regents violated Kentucky's Open Meetings Law at its meeting on January 25, 2008, as a result of its decision to meet in closed session to receive information concerning a matter which should have been dealt with at an open meeting of the Board." 1 More specifically, The Herald alleged the following:
1. KRS 61.815(1)(d) states that no matters may be discussed at a closed session other than those publicly announced prior to the closed session. There was no announcement made or vote taken regarding any discussion or exchange of information to be made at the closed meeting relating to the elimination of the men's soccer program.
2. There is no provision of the Open Meetings Law which allows the Board to meet in closed session to be informed of or to discuss the elimination of the men's soccer program.
3. If, in fact, the elimination of the men's soccer coach was as a result of the decision to eliminate that program, then the discussion of the elimination of that position was not authorized by the "personnel exemption" [of] the Open Meetings Law, KRS 61.810(1)(f). That exemption is for the protection of individuals who [sic] reputations might be affected by such discussions, and it is our understanding that this was not the case with regard to Mr. Holmes.
As a means of remedying the alleged violation, The Herald proposed the Board should make "a public acknowledgement of its violation of the law, a promise that such actions will not happen in the future," and hold "a timely meeting of the Board of Regents to publicly discuss the elimination of the men's soccer program."
In a timely written response, Ms. Gray responded to Mr. Paul's complaint on behalf of the Board, acknowledging that the Open Meetings Act does not permit a closed session for the purpose of discussing "the elimination of a 'position' in general"; however, the Board "did not go into closed session on January 25, 2008, for the purpose of such discussions." Noting that KRS 61.810(1)(f) authorizes the Board to go into closed session "for a discussion 'which might lead' to the dismissal of an individual employee, " Ms. Gray argues:
On January 25, 2008, the "individual" employee -- who was a subject of the closed session -- had not yet been informed of the decision on the part of the University to eliminate his current position, resulting in his dismissal from that position. Given the employee's longevity in the position at the University, the President determined that the Director of Athletics should brief the Board on the decision to eliminate the incumbent employee's position. It is appropriate and permissible that a discussion of the individual employee would take place in closed session in respect to the employee, who had not yet been made aware of the Director's decision, and in deference to his privacy rights. It is logical that the Director would include, as a part of this briefing, the reason which led to his decision: that the program overseen by the employee was also being eliminated.
As further observed by Mr. Gray, the Board is aware "that it cannot take action on matters discussed in closed session" during the closed session. "It did not in this case." To the contrary, the Board "was not asked, nor did it take action, to approve or endorse the elimination of the position which would result in the individual employee's dismissal from that position." Likewise, the Board did not take any kind of action relative to the men's soccer program.
According to Ms. Gray, the statement attributed to Dr. Selig, "that the Board 'signed off on' a decision to eliminate the men's soccer program, if accurate, is an unfortunate misstatement of what occurred in closed session. " 2 To clarify, the Board did not take action concerning the men's soccer program "either in closed session, or in any part of the open portion of the Board meeting." For this reason, the Board was unwilling to acknowledge that a violation of the Act was committed; however, Ms. Gray agreed to acknowledge receipt of the complaint during the next regular Board meeting on April 24, 2008, and "confirm the information in this response as part of the Board minutes of that meeting."
Contending that the Board "did not rely upon a proper ground for holding closed session discussions regarding the elimination of the position of men's soccer coach as a result of the elimination of the soccer program," Jeremy S. Rogers, counsel for The Herald , subsequently initiated this appeal on behalf of his client. As correctly observed by Mr. Rogers, the Board is a public agency within the meaning of KRS 61.805(2) and the closed session was a meeting under KRS 61.805(1). Accordingly, the discussion at issue "must be open to the public unless a specific exception contained in KRS 61.810(1) applies." In addition, "KRS 61.800 mandates that all such exceptions must be 'strictly construed.'"
In The Herald's view, the Board's position relative to KRS 61.810(1)(f) "makes no sense in light of the Board's claim that the discussion was nothing more than a briefing to the Board of a decision that had already been made." On the other hand, if Dr. Selig was correct, "the Board violated KRS 61.815(1)(c) , which prohibits final action being taken in closed session. " Regardless, the Board violated KRS 61.815(1)(d) in failing to publicly announce with specificity the subject of the discussion to be held in closed session. According to Mr. Rogers, the Board has, in short, failed to satisfy its burden of proof relative to KRS 61.810(1)(f). At most, the Board claims the discussion "might somehow indirectly relate to the elimination of the employee's position. What the Board does not establish (and must establish under a strict construction of the exception) is that the closed session was in fact a discussion or hearing that might have led to the dismissal of an individual employee. " In fact, the Board asserts the opposite in responding that it went into closed session "to be briefed on a decision that had already been made by Dr. Selig. Moreover, the decision was a general personnel matter -- the elimination of a position because of the elimination of a program -- not an individual employee issue." Citing
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997), Mr. Rogers correctly notes that KRS 61.810(1)(f), the "personnel exemption, " does not authorize a closed session "for such general reorganization or job elimination discussions." Accordingly, The Herald requests a decision from this office "that the Board violated the Open Meetings Act with regard to discussions of the elimination of the soccer program and the coach position." 3
Upon receiving notification of Mr. Rogers' appeal from this office, Scott D. Laufenberg, counsel for WKU, responded on behalf of his client. In Mr. Laufenberg's view, the Board "held a properly-noticed closed session to discuss two matters: the status of pending litigation involving WKU, and an individual personnel matter related to the potential dismissal of an employee." 4 Said employee was the WKU men's soccer coach, "who has been an employee of WKU for more than twenty years." According to Mr. Laufenberg, The Herald is essentially arguing that "if a specific incumbent employee's dismissal is the result of a program elimination, that 'specific' personnel matter becomes a 'general' personnel matter."
Quoting the language of KRS 61.810(1)(f), Mr. Laufenberg contends that "by the exception's clear and unambiguous terms, it is proper for a state university to hold a closed session to discuss the potential dismissal of an individual employee to protect that individual's privacy interests." Because it "is the privacy of the individual employee, member or student," and the discussion related to same "that underlies the basis for the exception," Mr. Laufenberg asserts the fact that the dismissal "could be or is the result of the elimination of the program to which the employee is assigned is irrelevant." As further argued by the Board:
In its request for a decision, [ The Herald ] argues that the subject of the closed session related to general personnel matters -- the elimination of the men's soccer program in contrast to a specific individual -- and relies upon Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921 (1997). However, The Herald does not dispute that the sole and only employee whose employment and dismissal was discussed was the WKU men's soccer coach, which is expressly permitted by KRS 61.810(1)(f). It is furthermore reasonable that the discussions related to the elimination of a currently-filled position and the dismissal of the specific employee who had been incumbent therein for more than twenty years would include some mention of the cause for elimination: the elimination of the men's soccer program after the current academic year. However, the mere inclusion of this information in the discussion does not negate the applicability of the exemption to the reason for the closed session: the dismissal of an individual employee. 5
In closing, Mr. Laufenberg asserts that The Herald's "attempt to recast the purpose of the closed session does not negate what in fact occurred in the closed session and the propriety of the closed session -- a discussion related to the dismissal of one individual WKU employee, which is permitted by KRS 61.810(1)(f)." Accordingly, the Board asks the Attorney General to issue a decision upholding the closed session held on January 25, 2008, as lawful and finding this appeal is without merit.
Because the Board's liberal interpretation of KRS 61.810(1)(f) is not supported by the express language of the exception, but is contrary to KRS 61.800, the Attorney General must respectfully decline to make such a finding. Insofar as the closed session apparently consisted of a "briefing" on a decision already made, as opposed to a discussion which might have led to the coach's dismissal, the Board "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Ratliff at 924.
Fundamental to our analysis of the sole question presented 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 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 a public agency conducting public business during a closed session, the General Assembly has created a number of exceptions to this general rule. Resolution of this appeal turns on the specific language of KRS 61.810(1)(f), which removes from application of the Open Meetings Act discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member or student.
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 hold 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]. (Emphasis added.)
Regardless of whether the Board fully complied with KRS 61.815(1)(a), 6 the mandatory notice requirement, which is unclear from the record, 7 the fact that the Board "was not asked, nor did it take action, to approve or endorse the elimination of the position" which resulted in the coach's dismissal from that position and likewise took no action regarding the men's soccer program "either in closed session, or in any part of the open portion of the Board meeting," does not render the discussion at issue permissible. To clarify, the Open Meetings Act prohibits both discussions, except for those which might lead to appointment, discipline, or dismissal, of an individual employee, and final action. 00-OMD-113, p. 4. In other words, the lack of action by the Board concerning the general personnel matters apparently discussed in closed session, albeit incidentally to the decision about which the Board was briefed, does not mitigate the violation committed when the Director briefed the Board on the decision to dismiss the coach as a necessary consequence of eliminating his position.
Equally unpersuasive is the Board's argument relative to the duration of the employee's career at WKU and the resulting deference for his privacy on these facts. Neither his "longevity" nor the failure to notify him prior to January 25, 2008, are relevant in determining whether the discussion was authorized under KRS 61.810(1)(f); likewise, none of the other exceptions codified at KRS 61.810(1) allow discussions premised upon these factors. While it may otherwise be "appropriate" to notify the individual employee, and courteous, just as it was "logical" for the Director to include, "as part of this briefing, " the underlying reason for his dismissal, none of the above justify the Board's reliance on this narrowly tailored exception. On appeal, the Board characterizes the dismissal in question as "potential," which is inconsistent, whether intentionally or not, with references in the Board's initial response to "the decision" to eliminate the coach's position, resulting in his dismissal, as well as the President's determination that the Director should "brief" the Board on the matter, all of which imply the decision was already final, a distinction which is legally significant and, in fact, determinative. It stands to reason that no causal relationship existed between the discussion at issue and the coach's dismissal as required for the Board to successfully invoke KRS 61.810(1)(f).
As long recognized by the Attorney General, and noted by the Board on appeal, the underlying rationale or premise of KRS 61.810(1)(f) is to protect the privacy of the individual when the discussion "might lead to" his appointment, discipline, or dismissal whereas the privacy interests of the individual are not implicated when, as in this case, dismissal is a foregone conclusion. Closed session discussions are permitted under KRS 61.810(1)(f) "only if there is a potential for reputation damage and no such potential exists under the facts of this appeal" given that a decision had already been made by the agency regarding the dismissal of the individual employee. 03-OMD-148, p. 7, citing OAG 83-415. To the contrary, the record is devoid of evidence to suggest any reason for dismissal of the coach aside from the elimination of his position, which inevitably resulted from the elimination of the soccer program, both of which are "general personnel matters" the Board admittedly discussed if only in relation to his dismissal and neither of which relate to him otherwise. Because the Board 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 an individual employee, this office must conclude that the Board "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Ratliff at 924.
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.
Footnotes
Footnotes
1 Mr. Paul understood that litigation had also been discussed per KRS 61.810(1)(c); however, The Herald found that "to be appropriate" and consequently did not challenge the propriety of the closed session on that basis.
2 On appeal, The Herald asserts the Board "was briefed by WKU's Director of Athletics, Dr. Wood Selig, on the proposed decision to eliminate the position of WKU men's soccer coach as a result of the elimination altogether of the men's soccer program at WKU. After the meeting, Dr. Selig stated that the Board 'signed off on' the decision."
3 In addition, The Herald requests "an order that the Board must produce all minutes, recordings and transcripts of the closed meeting." However, this office cannot issue a decision under the Open Records Act unless and until The Herald submits a written request for such records in accordance with KRS 61.872(2) and the Board has an opportunity to respond per KRS 61.880(1). In other words, any issue arising under the Open Records Act is not ripe for review under KRS 61.880(2)(a) as The Herald has not, as of yet, submitted the documentation required to file an Open Records appeal and such issues are not justiciable in the context of an Open Meetings appeal.
4 To reiterate, The Herald has acknowledged that pending litigation was appropriately discussed in closed session and raises no issues in this regard as correctly noted by Mr. Laufenberg. Accordingly, our analysis focuses exclusively on whether the Board properly relied upon KRS 61.810(1)(f) as the basis for conducting the closed session.
5 In addition, the Board contends that The Herald's reliance on Floyd County Board of Education v. Ratliff is misplaced; however, The Herald relies upon this opinion secondarily for the limited proposition that KRS 61.810(1)(f) "does not allow a general discussion concerning a school reorganization plan. " Id. at 924. Although the Board correctly observes that the Court specifically prohibited such a discussion "when it involves multiple employees," further consideration of this issue is unwarranted insofar as the facts which culminated in Ratliff differ significantly from those presented; the analysis focused primarily on the applicability of the "litigation exception" codified at KRS 61.810(1)(c) and is of limited use in this context beyond the governing principles outlined by the Court and set forth later in this decision. 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. Given the time constraints imposed on this office by KRS 61.846(2) and the secondary nature of the arguments relative to Ratliff , it suffices to say that nothing in that opinion alters our analysis on the unique facts presented.
6 To clarify, 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 (permissible as compared to general discussion of a reorganization plan involving multiple employees). Id.
7 Neither party has provided this office with a copy of the minutes from the meeting at which the closed session was held so as to verify the exact purpose stated nor are the minutes necessarily available per KRS 61.835 as of yet; however, the "announced purpose" was to "discuss litigation and personnel matters" according to the Board, which is not specific enough under the cited line of decisions contrary to its assertion that the closed session was "properly-noticed." Pursuant to KRS 61.846(2), the limited role of the Attorney General is to determine whether the public agency committed a violation of the Open Meetings Act based upon the written evidence of record (complaint, agency response, letter of appeal and supplemental agency response along with attachments, if any) - nothing more, nothing less. Accordingly, this office is unable to conclusively resolve factual disputes (relative to Dr. Selig's alleged statement, for example) in the context of an Open Meetings appeal. In any event, our holding is premised on the legal effect of those actions which are undisputed.