Request By:
Carl Hatfield
Loretta H. Cornett
S. Parker Boggs
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Cumberland City Council violated the Open Meetings Act at its February 13, 2007, regular meeting by conducting an improper closed session. Having reviewed the record on appeal, we find that some, but not all, of the claimed violations are substantiated.
By letter dated May 5, 2008, and directed to the Mayor of the City of Cumberland, Carl Hatfield filed a written complaint, "in accordance with KRS 61.846 ," that in the course of a regular meeting the council members went into executive session "for the purpose of 'discussing a personnel matter' . . . without specifically identifying the purpose and authority to do so . . . ." Mr. Hatfield alleged that the Council discussed "the position of 'Director of Utilities'" in the closed session, and that upon returning to open session "voted to approve the position of Director of Utilities." 1 As a means of remedying the alleged violation, Mr. Hatfield proposed that the Council, inter alia , "[r]escind all actions taken as a result of the illegally convened closed meeting. "
In a response bearing the same date, Mayor Loretta H. Cornett disputed Mr. Hatfield's statutory reference and questioned his intent. She wrote:
1. The Kentucky Revised Statute you cite is not the KRS section pertaining to "open meetings". Rather it establishes authority for the Attorney General of Kentucky to offer opinions on disputes between the requester of information or alleged violations and the response of the subject governmental entity. [Sic.]
2. You have not specified the date of the "regular open council meeting" in which you alleged the "violation" occurred.
3. You have alleged a "creating a new position in a closed session" . You offer no source for the allegation, documentary, recording, or personal witness. [Sic.]
4. Are you making an open records request?
5. Are you threatening a lawsuit?
I would be happy to respond to you in accordance with an open records request. Please notify me of what you specifically need, and when it specifically took place.
Mayor Cornett neither admitted nor denied the claimed violation.
In supplemental correspondence directed to this office following commencement of Mr. Hatfield's appeal, Cumberland City Attorney S. Parker Boggs responded to his allegations. With reference to the alleged open meetings violation, Mr. Boggs observed:
In Mr. Hatfield's complaint sent to the Mayor, dated May 05, 2008, he states:
Obviously Mr. Hatfield is aware that the Motion to go into executive session was announced to discuss a matter pertaining to personnel. The Council returned from the executive session to discuss the appointment of Mr. Lewis as the Utilities and Public Works Director. No action was taken in executive session. And there was no discussion regarding the possibility of creating a new position as alleged by Mr. Hatfield.
This executive session falls under the exemptions of the open meetings requirements (KRS 61.810) which permit executive session for discussions which might lead to the appointment of an individual employee. That is the case here. The noted exception applies if the discussion involves a specific individual, and only if the discussion involves the appointment of the individual. That is certainly the case here, Mr. Lewis was hired into the position in May of 2003 at $ 21.53 per hour. Mayor Hatfield fired Mr. Lewis in July of 2005 but hired him back in May of 2006 at $ 18.50 per hour as a Water and Sewer Supervisor and Flood Plain Coordinator but did not abolish the position of Utilities and Public Works Director. All employee positions in the city budget received a 5% cost of living increase in July 2006 which increased the Utilities and Public Works position to $ 22.60 per hour in 2007.
Mr. Lewis received his appointment in the regular session of the Cumberland City Council on February 13, 2007 (Council Minutes, Exhibit 5). In the regular meeting on February 13, 2007 the Council gave notice of the Motion to go into Executive session to discuss a personnel matter. The Motion was made and approved by majority vote in the open meeting to go into the closed session. No final action on the issue was taken in the closed session. The Council reconvened in an open meeting and approved the appointment made by the Mayor of an existing position within the budget. Therefore, no new position was created.
It was Mr. Boggs' position that "there have been no violations under the Open Meetings Act. "
Shortly thereafter, Mr. Hatfield replied to the Council's supplemental response, emphasizing that his complaint centered on the Council's failure to "specify[] the purpose, authority, and general nature as required by KRS 61.810 d [sic] and as determined necessary by the Kentucky Attorney General . . . ." He directed our attention to the minutes of the meeting, with which Mr. Boggs had furnished us, "to ascertain the procedure they followed in adjourning to executive session. " Having reviewed those minutes and in the absence of any proof to the contrary, we conclude that the Council violated KRS 61.846(1) in failing to issue a proper response to Mr. Hatfield's complaint, and KRS 61.815(1) in failing to observe the requirements for conducting a closed session. Based on the paucity of evidence in the record on appeal, we do not conclude that the topic of the closed session was improper as long as the focus of the discussion was Mr. Lewis', or other applicants', qualifications for appointment as Director of Public Utilities within the scope and application of KRS 61. 810(1)(f). 2
To begin, we find that although the Council's response to Mr. Hatfield's complaint was timely, it was in all other respects deficient. KRS 61.846(1) establishes guidelines for agency denial of an open meetings complaint. That statute provides that a complainant:
shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
The Council violated this provision by failing to "include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply." Mayor Cornett incorrectly challenged Mr. Hatfield's invocation of KRS 61.846. This was, in fact, the proper statutory reference for commencing an open meetings complaint and appeal. She then attempted to shift the burden to him by demanding that he offer documentary proof of the alleged violation or a "personal witness" to the alleged violation. Because Mr. Hatfield does not have the burden of proving the claimed violation, we find the Mayor's position in this regard legally untenable. Because the Mayor neither admitted nor denied the claimed violations, and, in the latter case, any "statement of the specific statute or statutes supporting the . . . denial," we find that the Council's response violated KRS 61.846(1).
Turning to the substantive issues presented, we find that the record on appeal does not support the Council's claim that "there have been no violations under the Open Meetings Act. " Instead, we find that the minutes of the February 13, 2007, regular meeting do not reflect strict compliance with the requirements for going into closed session codified at KRS 61.815(1(a) through (d). That statute provides that prior to conducting a closed session 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.
In construing this provision, the Kentucky 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.
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997). KRS 61.815 is thus 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 that 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-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) . "The failure to comply with the strict letter of the law in conducting meetings of a public agency, " the Supreme Court concluded in Ratliff , "violates the public good." Ratliff at 923, citing E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990). 3
When the exception relied upon to authorize the executive session is KRS 61.810(1)(f), permitting closed door "discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student" but prohibiting closed door "discussions of general personnel matters," the agency discharges its duty to describe the general nature of the business to be discussed 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 individual employee, member, or student. 97-OMD-179. It is not sufficient to refer merely to a "personnel matter." 04-OMD-179, Floyd County Board of Education , above. The minutes of the February 13 meeting reflect that:
Stagnolia made a motion to go into executive session. Blair seconded the motion. The Council broke at 7:20 and returned at 7:50. The Mayor called the meeting back to order. J. Gilliam made a motion to approve the appointing of Mark Lewis at [sic] the Public Works Director . . . .
The minutes do not reflect that a motion was made to conduct a closed session pursuant to KRS 61.815(1)(f) for a discussion that might lead to an appointment to the position of Director of Public Works and the qualifications of applicants for that position. Because the minutes do not reflect notice to the public of "the specific provision of KRS 61.810 authorizing the closed session, " the "general nature of the business to be discussed in closed session, " or the "reason for the closed session, " we conclude that the Council violated KRS 61.815(1)(a).
We do not reach this conclusion with respect to Mr. Hatfield's allegation that the Council violated KRS 61.810(1) by conducting unauthorized closed session discussions. Mr. Hatfield alleges that the Council improperly discussed the creation of the position of "Director of Public Works." The Council refutes this allegation, asserting that KRS 61.810(1)(f) applies to "discussions which might lead to the appointment of an individual employee, " and that "[t]hat is the case here." The Council notes that Mr. Lewis "received his appointment in the regular session of the Cumberland City Council on February 13, 2007." It is unclear whether other applicants were considered for the position, and their individual qualifications discussed, in closed session, but it is clear that Mr. Lewis was discussed in the closed session inasmuch as he was appointed to the position as soon as the Council reconvened in open session. While discussions relating to the abolition and/or creation of the position, the requirements for the position, and the salary and benefits associated with the position would have been impermissible in the closed session, we find insufficient proof in the record on appeal to support any such claim. Nevertheless, we remind the Cumberland City Council that "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public imput, interference, or scrutiny." Floyd County v. Ratliff at 924. Unless KRS 61.810(1)(f) was invoked for the purpose of discussing Mr. Lewis', or other applicants', qualifications, its invocation was improper.
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 The designation "Director of Utilities," "Director of Public Works," and "Utilities and Public Works Director" are used interchangeably throughout the record on appeal.
2 We do not address the issues raised by Mr. Hatfield relative to Mr. Lewis' status as Director of Public Utilities versus his status as Water and Sewer Department Supervisor. These issues are not justiciable in an open meetings appeal.
3 Anticipating the argument that KRS 61.815(2) relieves the Council of these statutory obligations, we refer the parties to 01-OMD-181, and, in particular, the analysis at pages 9 through 14 of that decision. Accord, Floyd County Board of Education v. Ratliff , above; 08-OMD-091. The Cumberland City Council is not exempt, per se, from complying with the Open Meetings Act, and must therefore strictly comply with the requirements for conducting a closed session codified at KRS 61.815(1).