Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Laurel County Fiscal Court violated the Kentucky Open Meetings Act by discussing general personnel matters in contravention of KRS 61.810(1)(f) during the closed session held on August 27, 2009. Because the Jailer "shall be responsible for the appointment and removal of jail personnel, " and "may dismiss his deputies at any time with cause" pursuant to KRS 71.060, the Fiscal Court was not authorized to discuss "matters which could have led to the discipline of specific jail employees" during the closed session; accordingly, the Fiscal Court necessarily violated the Act in discussing matters outside the narrow scope of KRS 61.810(1)(f). By failing to issue a written response to Mr. Hall's written complaint within three business days, the Fiscal Court also violated the mandatory terms of KRS 61.846(1).
By letter directed to Laurel County Judge Executive Lawrence Kuhl on August 31, 2009, Mr. Hall framed his complaint as follows:
KRS 61.810(1) establishes a very specific list of reasons [for] which a public agency may conduct a closed session. The reason for conducting a closed session was related to personnel. KRS 61.810(1)(f) reads [sic] "Discussions or hearing[s] which might lead to the appointment, discipline, or dismissal["] of individual employees. KRS 71.060 gives the jailer the sole authority to deal with personnel matters of jail employees. As such a meeting of the [F]iscal [C]ourt could not lead to the appointment, discipline, or dismissal or an employee.
Even with the fact the [F]iscal [C]ourt does not have the authority to conduct a closed session set aside, it appears the reason cited was not what was discussed in the closed session. As evidenced by letters provided by a magistrate to news media at the meeting, it appears the discussion was related more to general personnel matters in which specific employees may have been discussed, but that does no[t] meet the statutory burden required to conduct a closed session. The letters were provided by a magistrate to the news media after the closed session was conducted, so it would be only reasonable to believe the letters were discussed in the closed session. There is nothing contained in the letters which could be discussed in a closed session. As you should be aware[,] no other business other than that specifically stated by you, and permitted by law, can be discussed in the closed session.
To remedy the alleged violation, Mr. Hall proposed the following:
1. At the next regularly scheduled meeting, you announce during the session that you can [sic] the [F]iscal [C]ourt violated state law by conducting an illegal and improper closed session [;]
2. Disclose in full, to the best [sic] extent possible, the content that was discussed in the closed session. Any statements or opinions that can be recalled should be made again during the open session of the [F]iscal [C]ourt.
3. Make a statement expressing your desire to comply in full with the law in regards to open meetings.
Having received no response of any kind, Mr. Hall submitted a nearly identical complaint dated September 15, 2009, via certified mail. By letter dated September 22, 2009, Judge Kuhl advised Mr. Hall that he "consulted with Laurel County Attorney Elmer Cunnagin" regarding the complaint and was advised "not to respond." Mr. Hall subsequently initiated this appeal, contending that "the initial action to go into closed session violate[d] the law, as laid out in my original complaint, as d[id] failing to provide a response to my open meetings complaint." Having reviewed the record in light of KRS 71.060 and prior decisions applying KRS 61.810(1)(f) , this office agrees on both counts.
Upon receiving notification of Mr. Hall's appeal from this office, Judge Kuhl responded on behalf of the Fiscal Court, initially emphasizing that KRS 61.810(1)(f) permits a discussion "'which might lead to the appointment, discipline, or dismissal of an individual employee . . .'" Contrary to Mr. Hall's assertion, Judge Kuhl argues that "it is not clear whether or not KRS 71.060 gives the jailer the 'sole authority' to discipline his or her employees." 1 As Judge Kuhl further observed:
The [F]iscal [C]ourt on August 27, 2009, did go into executive meeting to discuss matters which could have led to the discipline of specific jail employees. Assistant Laurel County Attorney, J.L. Albright was present during the meeting and the Fiscal Court was very careful to discuss only those matters announced during the public calling of the executive meeting, pursuant to KRS 61.815. Upon adjournment of the executive meeting the regular [F]iscal [C]ourt meeting was reconvened, at which time, I announced that the [F]iscal [C]ourt had decided not to take any action on the matters discussed during the executive meeting. More importantly, I specifically announced that the [F]iscal [C]ourt had decided to allow the jailer to discipline his employees as he saw fit and that the jailer was to pay his employees only for hours worked according to law.
Although this office makes no finding with regard to the letters upon which Mr. Hall partially relied given that no such letters were included as part of the record, 2 his position is otherwise valid.
Fundamental to our analysis of the primary 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 the instant appeal turns on the specific language of KRS 61.810(1)(f) as indicated.
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 consistently 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].
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 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; 03-OMD-148; 00-OMD-113; 00-OMD-86; 99-OMD-94. 3
In keeping with prior decisions, the Attorney General has declared that "matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be discussed in closed session [under authority of KRS 61.810(1)(f)] . . ." 00-OMD-86, p. 3, and "KRS 61.810(1)(f), interpreted by this office in a manner consistent with the rule of strict construction codified at KRS 61.800, is 'severely restricted . . . [and only applies to discussions] which might lead to the appointment, discipline, or dismissal of personnel of that particular agency.'" 99-OMD-94, p. 6, citing 97-OMD-110, p. 3. See OAG 90-125 (holding that a university committee appointed to study academic standards for student athletes could not discuss such matters in a closed session called pursuant to KRS 61.810(1)(f)); 94-OMD-103 (holding that discussing the possible creation of a new position was improper during a closed session) ; 97-OMD-80 (holding that a discussion regarding the appointment of new members to a university committee could not be conducted in closed session because persons appointed were not employees of the university); 99-OMD-221 (holding that employee's claim for reimbursement could not be discussed in closed session) ; 00-OMD-113 (holding that any discussion by the city commission that was not restricted to whether disciplinary measures needed to be imposed on the police personnel who participated in a raid was not authorized by KRS 61.810(1)(f) and thus discussion relating to executive order was not properly the subject of an executive session).
As evidenced by this line of authority, a public agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing, in open session, the general nature of the business to be discussed in closed session (appointment, discipline, or dismissal of an individual employee) , the specific reason for the closed session (which of these particular actions is contemplated), and which of the exceptions codified at KRS 61.810 is being invoked to authorize the closed session (KRS 61.810(1)(f)). 4 In the absence of any objective proof regarding this issue, the Attorney General must assume that the Fiscal Court satisfied the notice requirements codified at KRS 61.815(1)(a); Mr. Hall makes no allegation to the contrary, focusing instead on his claim that the Fiscal Court improperly discussed matters which could have led to the discipline of specific jail employees under authority of KRS 61.810(1)(f). In response, Judge Kuhl emphasized that the Fiscal Court "decided not to take any action" regarding the matters it admittedly discussed. However, the Open Meetings Act prohibits unauthorized discussions and final action. 00-OMD-113, p. 4. In other words, the fact no final action was taken relative to matters improperly discussed in closed session does not mitigate any violation that occurred. Accordingly, the dispositive question is not whether the subject matter was appropriate for discussion under KRS 61.810(1)(f), but whether the Fiscal Court, as a threshold matter, was authorized to have a discussion which might lead to the appointment, discipline, or dismissal of jail employees in light of KRS 71.060.
When called upon to render a decision involving statutory interpretation, the Attorney General is required "to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In so doing, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). Likewise, this office "must construe all words and phrases according to the common and approved uses of language" per KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker, Ky. App., 661 S.W.2d 447, 480 (1983); See also
Withers v. University of Kentucky, Ky. 939 S.W.2d 340, 345 (1997). 5 When viewed in light of these fundamental principles, the mandate of strict construction found at KRS 61.800, and existing legal authority, the Fiscal Court's expansive interpretation of KRS 61.810(1)(f) cannot be affirmed.
Pursuant to KRS 71.060:
(1) The jailer shall be liable on his official bond for the conduct of his deputies. The deputies shall have all the powers and be subject to the same penalties as the jailer.
(2) The jailer shall be responsible for the appointment and removal of jail personnel, and the jailer may dismiss his deputies at any time with cause. The number of jail personnel shall be set by the fiscal court in the jail budget. The fiscal court shall establish education and training requirements as permitted by regulations adopted pursuant to KRS 441.055.
Despite the express language of this provision, Judge Kuhl questioned whether KRS 71.060 vests the jailer with "sole authority" to discipline his employees; however, Judge Kuhl did not elaborate or cite authority in support of a contrary interpretation 6 and Mr. Hall's point, in our view, is well-taken.
In 05-OMD-086, this office reasoned as follows in determining that "removal" is the equivalent of "dismissal": 7
In this context, the relevant definition of "removal" is: "Dismissal, as from office." The American Heritage College Dictionary 1177 (4th ed. 2002); See Kentucky Judicial Conduct Commission v. Woods, Ky., 25 S.W.3d 470, 473 (2000) (defining "Removal from office" as "Deprivation of office by act of competent superior officer acting within scope of authority"). Based on the "common and approved" meaning of the term removal, this office concludes that removal is the functional equivalent of dismissal in this context.
Id., p. 11; see 09-OMD-132. Because removal was therefore "among those specific topics encompassed by the literal language of KRS 61.810(1)(f)," and the individual whose removal or "dismissal" was being contemplated was a "member" of the agency, this office concluded that the agency had properly relied upon KRS 61.810(1)(f) in holding the closed session. Here, in contrast, the Fiscal Court was not authorized to discuss matters which might lead to discipline of jail employees insofar as KRS 71.060 expressly provides that the jailer "shall be responsible for the appointment and removal [or dismissal] of jail personnel" and "may dismiss his deputies at any time with cause"; accordingly, the Fiscal Court's discussion could not have led to the appointment, discipline, or dismissal of any jail employees and its reliance on KRS 61.810(1)(f) was misplaced.
In light of this determination, the remaining question is whether the Fiscal Court violated KRS 61.846(1), which, in relevant part, requires:
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. . . . 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. . . .
(Emphasis added.) In construing the operation of KRS 61.846(1), this office explained that it "does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period." 03-OMD-116, p. 2. As the record clearly establishes, the Fiscal Court did not issue a proper written response upon receipt of Mr. Hall's complaint initially or when he resubmitted it. 8 On appeal, the Fiscal Court offered no explanation for its failure to respond in a timely and proper fashion. As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings Act, "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-OMD-029, p. 4.
Simply put, KRS 61.846(1), as interpreted by the courts and prior decisions of this office, requires a public agency to issue a written response within three business days of receiving a complaint; failure to comply with KRS 61.846(1) constitutes a violation of the Open Meetings Act. Id. 00-OMD-142; 97-OMD-43. Based upon the limited evidence of record, this office also finds that the Fiscal Court "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public."
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997).
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 Based upon this statement and Judge Kuhl's announcement that the Fiscal Court "had decided to allow the jailer to discipline his employees as he saw fit, " a logical inference is that discussion might have centered on how to properly interpret KRS 71.060, which is not a permissible subject under KRS 61.810(1)(f); however, the record is devoid of evidence to confirm as much.
2 In responding to Mr. Hall's appeal, Judge Kuhl correctly observed that said letters "were not provided with the Complaint, such that a meaningful response is possible." Because the letters were Mr. Hall's "only evidence of a violation," Judge Kuhl asked that his appeal be "dismissed"; however, this office disagrees with Judge Kuhl's position relative to KRS 71.060.
3 Each of these decisions echoes an earlier Open Meetings Decision in which the Attorney General recognized that the General Assembly "specifically intended to close discussions only of these three subjects due to the potential for reputational damage. Closed discussions of any other matters are expressly precluded by KRS 61.810[(1)(f)] which prohibits the "discussion of general personnel matters in secret. " OAG 83-415, p. 2; 03-OMD-148, p. 7. Such potential might very well exist under the circumstances presented; however, this office does not reach that question as the Fiscal Court was not authorized to conduct a closed session under authority of KRS 61.810(1)(f) for the stated purpose to begin with.
4 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 joint misconduct of public employees which might warrant disciplinary action or dismissal. Id.
5 Absent a statutory definition, a dictionary may be consulted to ascertain the "common and approved" meaning of a term. See Young v. Commonwealth, 96 S.W.2d 670, 672 (1998).
6 Pursuant to KRS 61.846(1), the Fiscal Court has the burden of proving that its reliance on KRS 61.810(1)(f) was appropriate.
7 This office further observed that "removal is arguably the most severe form of discipline, " but found that additional consideration was unnecessary on the facts presented given our interpretation of "dismissal." 05-OMD-086, p. 11, note 8. Here, it stands to reason that if the jailer is authorized to remove his personnel then he is authorized to impose lesser forms of discipline as well.
8 Judge Kuhl appears to have relied in good faith on the advice of his legal counsel.