Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Fort Mitchell City Council ("the Council") violated provisions of the Open Meetings Act when, on May 18, 2009, it went into executive session pursuant to KRS 61.810(1)(f) to discuss the possible appointment of an individual employee, and subsequently in closed session discussed the creation of a paid fire chief position. For the reasons that follow, we find that the Board members' actions contravened the Act.
In a complaint dated June 24, 2009, 1 Joseph J. Oka asked whether on May 18, 2009, in executive session, the Council discussed "the creation of the position of a full-time paid fire chief and/or any position" in violation of the Open Meetings Act. As a means of remedying the alleged violation, Mr. Oka proposed that the city "publish a public notice that it violated the [Act] and announce that what was discussed in secret would now be discussed at the next regular council meeting"; make at that meeting a "full and open disclosure and accounting of what was said and discussed" and solicit public comments; and that there be "a written prohibition against any attendee of the illegal meeting from ever holding the discussed position or any position created from that meeting now or anytime in the future."
The City's response was received by Mr. Oka on July 3, 2009, in the form of a copy of a letter from City Attorney Robert C. Ziegler to Mayor Thomas Holocher, in which Mr. Ziegler states:
I have reviewed the letter from Joseph J. Oka, which alleges a violation of the Open Meetings Act, resulting from the executive session on May 18, 2009. Based on discussions with Steve Hensley prior to that meeting, it was made clear that the intent of the executive session was to discuss matters that may lead to the appointment of an individual employee. In such instances, an executive session is appropriate pursuant to KRS 61.810(f) [sic]. I agree with Mr. Oka that this exception to the Open Meetings is not intended to be used to permit discussion of general personnel matters in secret. However, I do not believe that the intent in this case was to avoid open discussion of general personnel matters, but was rather intended to maintain confidentiality relating to certain employees of the City.
This office received Mr. Oka's appeal on July 7, 2009. Mr. Oka argues, in part, as follows:
If the City's argument were maintained they would simply have to have the intention to mention a certain employee's name and that would make legitimate the discussion of any general matter behind closed doors.
As of the writing of this letter, the June 8, 2009 council minutes have become available. In those minutes it is admitted that there have been discussions of making the volunteer fire chief's position a new paid position and that those discussions have only happened in executive session. (Copy of minutes enclosed)
It is my belief that the executive session was used to discuss general personnel matters to create a new paid position out of a volunteer position, even though they might have used an individual's name.
A copy of a page from the June 8, 2009, Council minutes provided by Mr. Oka includes the following statements:
Mayor Holocher explained that Scott McVey currently serves as Fire Chief as a volunteer. There have been discussions of making the fire chief's position a paid position. ? This change would be made in the next few weeks, on or around July 1. Mr. Zahler asked about support from the volunteers. Mr. Stoeckle stated since it was only discussed in executive session he has not discussed it with the members.
On July 23, 2009, the City submitted a response to Mr. Oka's appeal in the form of a letter from City Attorney Robert C. Ziegler. Mr. Ziegler contends, in pertinent part, as follows:
There is nothing to support [Mr. Oka's] allegations concerning the discussion of the general personnel matters. With no factual basis such allegations are believed to be nothing more than his mere speculation and nothing more. In truth, the City's discussions within the closed session adhered to the discussion of individual employee's [sic] and their possible appointment to the fire chief position. Obviously, common sense will dictate that upon appointing a person to the chief position the City would include discussions incidental to that appointment, including matters relating to the creation of any necessary position to coincide with the appointment.
[T]he discussion focused on the appointment of a person who would serve as the fire chief. Yes, a logical corollary to that discussion was that the City may have to establish a new position if the person was appointed. However any such discussion related to that issue was necessary under the circumstances. Such discussions are an unavoidable consequence that occur in practically every closed session. ? In this case the discussion did not stray beyond what was reasonable under the circumstances. ?
(Emphasis added.) Thus the City, while denouncing Mr. Oka's complaint as "mere speculation, " also proceeds to acknowledge that some discussion of creating a new paid position of fire chief did occur in the closed session. It merely maintains that such discussion was "logical, " "necessary," "unavoidable, " and "reasonable."
The City's argument puts the proverbial cart before the horse. The reason it was "necessary" and "unavoidable" to discuss creating a position is precisely that it is impossible to discuss the appointment of an individual to a position that does not yet exist. This office has previously stated on more than one occasion that creating a new position is a "general personnel matter" which must be discussed in open session pursuant to KRS 61.810(1)(f). 94-OMD-103, p. 2; 02-OMD-79, p. 6; 08-OMD-145, p. 2.
Mr. Ziegler's response continues:
Additionally, the comment by Mr. Stoeckle that he had yet to discuss the appointment of Mr. McVey to chief with the volunteers "because it was only discussed in executive session" simply reaffirms the City's position that the closed session was conducted to discuss the appointment of an individual employee not general personnel matters.
This argument attempts to recast what is written in the June 8 minutes, 2 which plainly suggest it was the "change" from a volunteer position to a paid position that had been discussed in executive session. Furthermore, it could not have been the "appointment of Mr. McVey to chief" that was discussed, because he was already the chief. In any event, the substantive admissions contained in the City's response are merely corroborated by this remark in the June 8 minutes; namely, that the creation of a new paid position of fire chief was discussed in the closed session on May 18.
It is not clear from the record whether the closed discussions included the potential appointment of someone other than Mr. McVey to the existing position of volunteer fire chief. If so, then it was proper for the council to go into closed session pursuant to KRS 61.810(1)(f) for that limited purpose. Otherwise, the entire discussion should have been conducted in public.
In 00-OMD-113, a copy of which is attached hereto and adopted by reference, we found the Open Meetings Act to have been violated when a city commission went into closed session for a proper purpose under KRS 61.810(1)(f) (potential discipline of individual employees) and then discussed, however briefly, a general personnel matter, thereby exceeding the scope of the specific purpose for which the closed session was announced. Since the material facts in this appeal are essentially the same as those in 00-OMD-113, we likewise find that the Council's discussion of a general personnel matter (the creation of a position) was in violation of the Open Meetings Act.
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 June 24 complaint was a slightly revised version of an undated complaint that Mr. Oka reports having sent to the City on June 17, 2009.
2 "[A] public agency only speaks authoritatively through its minutes. County Board of Education v. Durham, 198 Ky. 732, 249 S.W. 1028 (1923)." OAG 81-387.