Request By:
Julia Hunter
Sheriff Livy Leavell, Jr.
J. Michael Foster
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Hopkinsville-Christian County Emergency Operations Center Board violated the Kentucky Open Meetings Act by failing to observe the requisite formalities before going into closed session during the special meeting held on June 26, 2008, for the stated purpose of discussing "personnel issues," and in discussing matters beyond the narrow scope of KRS 61.810(1)(f) during the closed session as prohibited by KRS 61.815(1)(d). In accordance with
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (1997), this office finds that insofar as the EOC Board apparently failed to cite the specific exception being relied upon as the basis for conducting the closed session, the EOC Board violated the mandatory terms of KRS 61.815(1)(a); likewise, the EOC Board failed to give "specific and complete notification" of "any and all topics" which the agency planned to discuss if any personnel matters aside from the "discipline of a staff member or members" were, in fact, discussed. Based upon the conflicting evidence of record, the Attorney General is unable to conclusively resolve the question of whether the EOC Board improperly discussed "general personnel matters," namely resignation of the EOC Director and the subsequent motion to appoint a temporary replacement, during the closed session. To the extent discussion of any such issues occurred, the Board exceeded the narrow scope of KRS 61.810(1)(f); conversely, there was no violation if the discussion was limited to the stated topic of potential discipline of an individual employee (s).
By undated letter directed to EOC Board Chairman Sheriff Livy Leavell, Kentucky New Era reporter Julia Hunter submitted a complaint "pursuant to KRS 61.846(1) arising from a closed meeting conducted on June 26, 2008." As explained by Ms. Hunter:
On June 26, 2008, I attended a Board meeting which concerned the recent early departure of EOC Director Gary Eldridge. The meeting was a special meeting under KRS 61.823. The Board's notice of the meeting provided simply that the Board intended to go into closed session to discuss a "personnel" issue. The Board did not announce the reason for going into closed session or cite any law that permits the Board to go into closed session. At the conclusion of the closed session, a motion was made to appoint Sheriff Livy Leavell as interim director, and the motion carried without discussion or debate. Immediately thereafter, without discussion or debate a motion was made and carried to place an advertisement for the permanent director position. At no time prior to the closed session had the Board ever discussed or voted in open session upon the question of whether the Board would create or attempt to fill the position of interim director, and at no time prior to the closed session had the Board ever discussed the search process for the permanent director position.
In Ms. Hunters view, "the Board violated KRS 61.815(1)(a) because it did not state the specific provision of KRS 61.810 authorizing the closed session. Moreover, there is no provision of KRS 61.810 that authorizes the closure of a public agency's meeting to discuss 'personnel' matters." Quoting KRS 61.810(1)(f), Ms. Hunter correctly observed that "[i]f, as we believe, the Board met in closed session to discuss whether to create and fill the position of interim director and to discuss matters relating to the process for hiring a new permanent director, those are general personnel matters that Kentucky's Open Meetings Act requires" to be discussed in open session. Accordingly, "in addition to its inadequate notice under KRS 61.815, the fact that the Board went into closed session at all to discuss these matters is a violation of the Open Meetings Act. " As a means of remedying the alleged violations, Ms. Hunter proposed that the Board should do the following:
(1) furnish any and all records reviewed by the Board at the June 26, 2008 closed session;
(2) furnish any minutes or recordings of the closed session (of, if none exist, then provide a detailed account of what took place in the closed session) ;
(3) publicly apologize for, and admit to, the violations of the Open Meetings Act; and
(4) commit in writing to abide by the law in the future.
On June 30, 2008, Christian County Attorney J. Michael Foster responded to Ms. Hunter's complaint on behalf of the Board. According to Mr. Foster, the closed session conducted by the EOC Board on June 26, 2008, "specifically dealt with the discipline or potential discipline of an employee and was so announced at the meeting. The discussion in closed session was limited to prevent the discussion of general personnel matters." In conclusion, Mr. Foster noted that he was forwarding a copy of his response to "management of the Kentucky New Era to ensure [Ms. Hunter's] employer that the EOC Board is committed to complying with" the Open Meetings Act, and that the Board is "always willing to meet with the management of the newspaper, or its legal counsel, should management have additional questions concerning compliance with" the Act.
By letter dated July 3, 2008, Ms. Hunter initiated this appeal from the denial of her complaint, summarizing the applicable law and reiterating her earlier arguments. According to Ms. Hunter, she had spoken with Sheriff Leavell on two occasions prior to the meeting; both times he indicated that "he was unsure if an interim director would be appointed. He also said he was unsure of how the hiring process would take place during the search for a new director." Although the Board also held a [presumably regular] meeting on June 19, 2008, at which a closed session was conducted to discuss "personnel matters," neither the "appointment of an interim director nor the process of hiring a director was ever discussed in open session. " 1 These were the only two meetings that occurred after the resignation of the Director. Insofar as closed sessions conducted pursuant to KRS 61.810(1)(f) "are limited to discussions of appointment, discipline, and dismissal of an individual in order to protect the individual's reputation[,]" Ms. Hunter argues that discussion of "other individual personnel matters" in closed session "would subvert the purpose and language" of the exception; therefore, a public agency is not permitted to discuss "whether to accept the resignation of an official at a closed session. OAG 83-415." Attached to Ms. Hunter's appeal is a copy of the agenda 2 for the meeting in question as well as a copy of each newspaper article referenced.
Upon receiving notification of Ms. Hunter's appeal from this office, Mr. Foster supplemented his response on behalf of the EOC Board. Having reiterated his earlier argument, Mr. Foster asserts that discussion "was limited to discipline issues involving a particular staff employee." In reviewing Ms. Hunter's complaint, it appears to Mr. Foster that her allegations are "based on a series of assumptions that did not" actually occur. To clarify, "the discussions conducted in closed session dealt with a specific employee that had violated the adopted personnel policy of the [EOC] that was very serious in nature. Sheriff Leavell simply updated the Board of Directors on the details of the violation and possible options in disciplining the employee." Such matters "are clearly the proper subject of a closed session. " According to Mr. Foster, the "only way to disprove" Ms. Hunter's "false accusations" is to provide "the name of the employee" and specify the discipline imposed. "To do so would violate the individual rights of the employee." Based upon the foregoing, the EOC Board requests that Ms. Hunter's appeal "be dismissed and further be determined to be without merit."
Given the minimal objective proof and conflicting factual summaries presented, the undersigned counsel spoke with a representative of Mr. Foster's office to request a copy of the minutes of the meeting; his assistant forwarded a copy of the unapproved minutes via facsimile on July 14, 2008. In relevant part, the minutes provide:
. . . Sheriff Leavell then announced that Gary Eldridge, Director of the Emergency Operations Center, had advised Sheriff Leavell that due to personal issues, it was necessary for Mr. Eldridge to resign his position as Director of the Hopkinsville-Christian County Emergency Operations Center effective June 23, 2008.
Sheriff Leavell then announced that the next item on the agenda was a closed session to discuss personnel issues . A motion was then made by Chief Pace and seconded [by] Councilman Sherrill to go into closed session to discuss employee discipline of a staff member or members of the Emergency Operations Center . The motion passed unanimously and the [B]oard then went into closed session.
. . . Upon returning to open session, Sheriff Leavell announced that no action [w]as taken during the closed session.
Councilman Sherrill then made a motion to appoint Sheriff Leavell as acting director of the Emergency Operations Center until such time as a permanent director could be employed by the Board. The motion was seconded by Chief Pace. There being no discussion of the motion, the Chairman then called for a vote of the Board. The motion passed unanimously.
(Emphasis added.) In failing to cite the specific exception upon which it was relying, the Board unquestionably violated KRS 61.815(1)(a); however, the record is inconclusive regarding the matters actually discussed in closed session and therefore precludes a finding. When viewed in light of the undisputed assertion that no prior discussions regarding the Director's resignation had occurred, the sequence of events outlined in the minutes of the meeting arguably supports an inference that matters beyond the scope of KRS 61.810(1)(f) were discussed. If any such issues were discussed in addition to the permissible topic stated, the Board "expanded the intended 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 questions 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 discussing public business during a closed session, the General Assembly created a number of exceptions to this general rule, which are codified at KRS 61.810(1)(a)-(n). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a) -(d), pursuant to which:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
In construing KRS 61.815, 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 . Both the General Assembly and the judiciary have thus demonstrated their commitment to "open government openly arrived at." 00-OMD-113, p. 2 (citation omitted).
As evidenced by the following, decisions issued by the Attorney General over the years relative to compliance with KRS 61.815(1) are consistent with
Floyd County Board of Education v. Ratliff, supra, in which the Kentucky Supreme Court held that the Board failed to give proper notice during open session of the matters to be discussed in a closed session. Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the Court reasoned:
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. In this case, the minutes of the Board do not reflect any mention of the "proposed or pending litigation" [here, the "personnel exception"] to the Open Meetings Act. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. [Citations omitted.] We agree with the language written by then Court of Appeals Judge Johnstone and concurred in by the panel composed of Judges Schroder and Wilhoit 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. Unfortunately, we believe that is precisely how they were used in this case."
Discussions between Board members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct .
Ratliff at 924 (emphasis added). Although the record is devoid of any objective proof to refute the Board's assertion that only "the discipline or potential discipline of an employee" was discussed in the closed session, equally lacking is any indication that the Board cited the specific exception which authorized the closed session; accordingly, this office finds that the Board violated the Act in failing to give proper notice under KRS 61.815(1)(a) regardless of whether the discussion was actually restricted to a permissible topic or not.
Of particular significance, the Attorney General has observed the following on the issue of strict compliance 3 with KRS 61.815(1)(a):
It is the opinion of this office that the Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of the language of the exception authorizing the closed session , but less than a detailed description of the matter to be discussed.
00-OMD-64, p. 6 (emphasis added). Referring to language employed by the Supreme Court in Ratliff , this office concluded:
In view of the disparate nature of the [thirteen] exceptions, there can be no bright line test for determining if specific and complete notification has been given. However, consistent with the right of the people to "remain[] informed so that they retain control over the instruments they have created" (1974 HB 100, Preamble), we believe that the notification must include both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in sufficiently specific terms to enable the public to assess the propriety of the agency's actions .
Id. (Emphasis added).
Insofar as KRS 61.815(1)(a) contemplates "more than agency recitation of the language of the exception," it stands to reason that a notification without any reference to the exception is deficient. As consistently recognized by the Attorney General, "a notification which does not include a statement of the specific exception relied upon to conduct a closed session, a description of the general nature of the business to be discussed in, and the reason(s) for, the closed session is inadequate." 03-OMD-221, p. 4; 02-OMD-200; 01-OMD-181. That being said, the notification was otherwise proper as "the description of the business to be discussed" set forth in the unapproved minutes of the meeting, "to discuss employee discipline of a staff member or members of the Emergency Operations Center," was "sufficiently specific" assuming the discussion at issue was, in fact, restricted to authorized topics, i.e ., did not include any mention of the Director's resignation or the Board's plan of action relative to same. As in many cases, the conflicting evidence in the record on appeal does not lend itself to a definitive resolution of the latter issue; however, the law is unambiguous.
By its express terms, KRS 61.810(1)(f), upon which the Board implicitly relied, authorizes public agencies to conduct 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 consistently observed 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. " See 93-OMD-49, p. 3; OAG 90-125, p. 2. Rather, the only personnel matters which can properly be discussed are those "which might lead to the appointment, discipline, or dismissal of personnel of that particular agency." Id. 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 open session 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," namely "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 in enacting KRS 61.810(1)(f), the General Assembly "specifically intended to close discussions only of these three subjects due to the potential for reputational damage. Closed session discussions of other matters are expressly precluded by KRS 61.810[(1)(f)]." OAG 83-415, p. 2 (holding that public agency improperly relied upon KRS 61.810(1)(f) to conduct a closed session for the purpose of discussing an employee's resignation) . See 03-OMD-148, p. 7; 99-OMD-221 (holding that employee's claim for reimbursement could not be discussed in closed session) ; 99-OMD-133 (holding that public agency improperly discussed employee's resignation during closed session) ; 94-OMD-103 (holding that discussing possibility of creating a new position during closed session is not proper). See also 08-OMD-040.
As evidenced by this line of decisions, a public agency such as the Board "complies with the requirements of 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 is going into closed session 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." 99-OMD-49, p. 3. 4 To the extent the Board failed to strictly comply with the requirements of KRS 61.815(1)(a) prior to conducting the closed session held on June 26, 2008, the Board acted in contravention of Ratliff , the fundamental policy of the Open Meetings Act found at KRS 61.800, and prior decisions of this office. Based upon the conflicting evidence presented, this office is unable to conclusively resolve the remaining question of whether the Board also violated KRS 61.815(1)(d). To reiterate, the 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.
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 Although the Board does not challenge this assertion, Ms. Hunter's complaint only concerned the meeting held on June 26, 2008; accordingly, our analysis is confined to that meeting under KRS 61.846(2).
2 The agenda consists of the following:
1. Call to order
2. Personnel announcement
3. Closed session-personnel
4. Adjournment