Request By:
Charlie Hust
James Kemp
Amealia R. Zachary
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Webster County Board of Education violated the Kentucky Open Meetings Act in failing to comply with all of the notice requirements codified at KRS 61.815(1) that "shall be met as a condition for conducting a closed session" authorized by KRS 61.810, at a public meeting held on June 17, 2009, and in discussing matters outside the scope of the specific provision authorizing the closed session, KRS 61.810(1)(f) , as prohibited by KRS 61.815(1)(d). In admittedly citing only "personnel" as the reason for going into closed session, the Board failed to strictly observe the requisite formalities in violation of KRS 61.815(1)(a). Although the conflicting evidence of record precludes the Attorney General from conclusively resolving the question of whether the Board actually discussed "general personnel matters" during the closed session, the Board has acknowledged that any such discussion would have been improper. In the absence of any objective proof to refute the Board's account of the session, this office finds no violation.
By letter directed to Board Chairman James Nance and Superintendent James Kemp on August 19, 2009, Charles Hust, owner of The Journal-Enterprise , submitted a complaint in which he challenged the Board's decision to enter into a closed session under authority of KRS 61.810(1)(f) at its regular meeting on August 17. Having quoted the language of KRS 61.810(1)(f), Mr. Hust alleged the following:
However, as it was made apparent later in the meeting, the closed session did not meet [those] criteria. Carol Hill, the spokesperson for the group of Providence educators and citizens, acknowledged in open session that that she had read a prepared statement to the Board while it conducted its closed session. This is also a violation, according to the statute, as her letter did not specifically pertain to the guidelines of the statute described above.
Additionally, the statute goes on to state: "Under this exception, the agency must disclose whether it will be discussing the possible appointment, discipline or dismissal of personnel of that particular agency during the closed session; it cannot simply make a general reference to the exception." At no point during the meeting did the Board indicate whether the discussion would lead to "appointment, discipline, or dismissal of personnel" as required in this statute. 1
In accordance with KRS 61.846(1), Mr. Hust asked the Board to "make available to the public all minutes pertaining to and including the closed session discussion which took place held [sic] Aug. 19 under KRS 61.810(1)(f)[,]" to publicly acknowledge the error in an open session [,]" and to conduct future sessions in accordance with "the statute being cited," including the requirement of "providing specific reasons for the closed sessions. "
In a timely written response, Superintendent Kemp advised Mr. Hust, in relevant part, as follows:
As you stated, the Board entered into a closed session under KRS 61.810(1)(f) - personnel - very near the beginning of the regular board meeting last Monday. The specific topic was to discuss personnel performance that could lead to discipline or dismissal. District employee Carol Hill was summoned into the closed session. The District's legal counsel, Amealia R. Zachary, was also summoned. Mrs. Hill provided information not otherwise available to the Board, but directly related to the purpose of the closed session. The District's attorney provided legal advice on the conduct and content of the session under the statute cited publicly prior to the closed session.
At the conclusion of the closed session, the Board President, James A. Nance, directed the [B]oard's [l]egal [c]ounsel to make a summary statement on behalf of the Board. That statement made it clear that the closed session had to do with the conduct of certain personnel but that when Ms. Hill attempted to comment on general policy and procedure, she was stopped and asked to do so in open session. She did so in open session by reading the entire letter with names deleted [(o]nly the part about personnel being considered for discipline was allowed to be read in closed session [).] The Board attempted to be fair to the personnel and public by being very strict in what it allowed Ms. Hill to address in closed session. Likewise, the Board addressed the general issue in open session.
In responding to Mr. Hust's proposed remedies, Superintendent Kemp advised that "[n]o transcripts, notes or minutes of any closed session are made by the Board or its members individually," 2 and the Board "announced the purpose of the closed session before it entered into same" and then "directed its attorney to state the purpose of the session when the Board reconvened" in open session. Although "details were not provided, the [Board] did review personnel discipline [in closed session] and as such was not in error." The Board "announced the purpose of this closed session as 'personnel, '" but "did not reveal any further specifics." In the Board's view, "[t]his potential oversight is entirely justifiable when weighed against possible personal and professional damage." Mr. Hust subsequently initiated this appeal.
Upon receiving notification of Mr. Hurt's appeal from this office, Ms. Zachary responded on behalf of her client, in relevant part, as follows:
Mr. Hust states [in his letter of appeal 3] that a group of citizens were in attendance to discuss a policy decision made by the [B]oard. Such is misleading if not untrue. There had been no "policy decision made by the [B]oard. " The group was apparently there to question a decision made by specific personnel allegedly based on some very old policies of the boards from previous administrations.
The letter from Mr. Hust simply speculates that he thinks some improper action may have taken place in a closed session regarding personnel. Such speculation could be had of every closed meeting by every [public agency] .
Because it had received the written complaint/letter, the Board properly announced that it would enter [into] a closed session pursuant to KRS 61.810(1)(f) personnel [sic]. The Board entered into that session. The Board had been provided with the letter which "blasted" a specific employee of the District and criticized two others for their conduct in handling a certain issue.
While the meeting was in closed session, a reporter complaint to counsel and insisted that it was her job to check on the closed session. Counsel did so and returned to inform the reporter that the meeting was discussing personnel and nothing more. Counsel also returned to the closed session and remained for the duration of the closed session with the Board. (Apparently the reporter was unaware of that fact.) The Board discussed the actions taken by the personnel and what, if any, discipline needed to be implemented against the subject personnel.
It was obvious that the reporter had been given some prior notice and was intent on the discussion being had in open session. If the letter had been written about the policies instead of the personnel, that could have happened. As it turned out, counsel and the Board had to separate the two issues and divide the discussion into closed and open session discussions. Only the names of the personnel and any action, if any, [sic] were withheld from the media.
Counsel and the Board were very careful not to engage in discussion of general policy in the closed session. The complaining party, a staff member from one of the schools, was stopped when she tried to enter into general discussion and told that she could present that concern in the public meeting.
The Board does not allow name calling at public meetings but the letter was allowed to be read to the public with the names removed. A copy was provided to the media.
According to Ms. Zachary, "[t]here are two legal fallacies in the Hust letter." First, Mr. Hust "mistakenly believes that closed sessions must always include counsel." Second, he "believes that the name of the personnel must be disclosed." In sum, he "is wrong about both and the rest of his letter is mere speculation." As Ms. Zachary observed, "[t]he presence of counsel is not required. Under KRS 61.810(1)(f) personnel is a permissible matter." Ms. Zachary reiterated that "[n]o matter was discussed other than in compliance" with KRS 61.810(1)(f) and no action involving personnel is allowed to be discussed in open session, including names." Citing OAG 77-560, Ms. Zachary noted that "any person(s) who a board of education believes can contribute information or advice on the subject matter under discussion may be invited into a closed executive session. " 4 Further, as OAG 79-516 confirms, when going into closed session to discuss a personnel issue, "[t]o include the name of the specific employee is not required." Ms. Zachary emphasized that the Board "complied with this OAG in its motion to go into closed session. " Having repeated the Board's earlier arguments relative to the proposed remedies, Ms. Zachary observed that the Board "does not admit that the law was not followed in 8-17-09 and specifically states that the meeting was properly and legally conducted." Based upon the limited evidence of record, this office finds that in failing to strictly observe the notice requirements codified at KRS 61.815(1)(a) before going into closed session, the Board violated the Act; however, the record lacks adequate proof upon which to base a finding that a violation of KRS 61.810(1)(f) occurred.
Our analysis necessarily begins with a review of the fundamental proposition 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 in conducting 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)-(l). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1), which, in relevant part, reads:
[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 .
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, supra, in which the Kentucky Supreme Court held that the Board failed to give proper notice in 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" 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. See Fiscal Court v. Courier Journal and Louisville Times Co., Ky., 554 S.W.2d 72 (1977); Jefferson County Board of Education, supra , at 28. 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.
Floyd County Board of Education at 924 (emphasis added). Although the record is devoid of any objective proof to refute the Board's assertion that only "personnel performance that could lead to discipline or dismissal" was actually discussed in closed session, the Board has repeatedly conceded that it failed to specify the reason for the session beyond making a general reference to "personnel. " In fact, the Board "announced the purpose of this closed session as 'personnel, '" but "did not reveal any further specifics," an "oversight" which "is entirely justifiable" according to the Board. In failing to give proper notice under KRS 61.815(1)(a), however, the Board violated the Act regardless of whether the discussion was actually restricted to a permissible subject or not.
Of particular significance, the Attorney General has observed 5 that "the Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of 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. Referring to language employed by the Supreme Court in Floyd County Board of Education, supra, 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).
As the Attorney General has consistently recognized, "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. On appeal, the Board offers no evidence to refute Mr. Hust's assertion that it failed to strictly observe the formalities codified at KRS 61.815(1)(a) , relying instead upon the fact that it cited the specific provision (s) in partial compliance with KRS 61.815(1)(a), 6 and, further, that it subsequently elaborated regarding the nature of the business discussed and the reason(s) for the sessions during open session to excuse the omissions, thereby misinterpreting KRS 61.815(1)(a). However, a public agency "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. Although the Board apparently complied with KRS 61.815(b) and (c), which Mr. Hust does not dispute, belated notification is an oxymoron. To the extent the Board failed to strictly comply with the requirements of KRS 61.815(1) prior to conducting the closed session held on August 17, those omissions were contrary to Floyd County Board of Education, supra, the fundamental policy of the Open Meetings Act codified at KRS 61.800, and prior decisions of this office.
In light of this determination, the remaining question is whether the Board improperly discussed "general personnel matters" during the closed session at issue. Resolution of this question turns on the mandatory language of KRS 61.810(1)(f), which authorizes public agencies to hold a closed session only for "[d]iscussions 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 [.]" With regard to application of KRS 61.810(1)(f) generally, the analysis contained in 00-OMD-113, a copy of which is attached hereto and incorporated by reference, is controlling.
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. 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. See 03-OMD-148, p. 7; 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. 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).
In 98-OMD-94 and 00-OMD-114, the public agencies whose "secret" meetings were challenged had acknowledged that meetings occurred but defended the meetings on various grounds; further, the complainants personally observed the "secret" meetings in progress. Here, the Superintendent, members of the Board, and legal counsel who attended the closed session and purportedly discussed the more than potential discipline of a specific employee(s) have flatly denied that such a discussion occurred. Under these circumstances, the Attorney General is unable to find that a violation was committed; the Board has conceded that if such a discussion had taken place it would constitute a violation of the Act. See 00-OMD-142 (issue concerning actual delivery of meeting notice to city commissioner is factual in nature and the Attorney General cannot resolve a factual dispute in the context of an open meetings appeal); 00-OMD-169 (issue of whether a member of the public voluntarily left a meeting was a factual issue which could not be resolved since evidence was conflicting). As in the cited appeals, the record is devoid of hard evidence to support the claimed violation.
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 KRS 61.810(1)(f) does not contain the quoted language nor does it expressly require specific notification; however, KRS 61.815(1)(a) does provide that "[n]otice 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. " Mr. Hust was presumably quoting from an unspecified prior decision of this office interpreting the mandatory language of KRS 61.815(1)(a).
2 In 94-OMD-110, this office reiterated that "'minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session. '" Id., pp. 4-5, quoting OAG 87-16.
3 Mr. Hust incorrectly alleged that KRS 61.810(1)(f) required the Board to specify "who was being discussed." However, the Board was required to specify "what action the board might be considering in regards to that person," i.e., appointment, discipline, or dismissal - nothing more, nothing less. "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.
4 In 08-OMD-212, this office advised the Board that the "Attorney General has recognized a limited exception for nonmembers who 'can contribute information or advice on the subject matter under discussion,' but emphasized that the nonmember 'should remain only so long as is necessary to make his [or her] contribution to the discussion.'" Id., citing 01-OMD-181, p. 6. Insofar as the Board has fulfilled its duty to explain why its legal counsel was invited into the session, and Mr. Hust was concerned with ensuring that she was in attendance rather than challenging her presence or the duration of her stay, further comment is unnecessary.
5 In 00-OMD-114, this office declined to view a violation of the Open Meetings Act as "technical." At page 3 of that decision, the Attorney General reasoned that "[t]he Act itself does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely 'technical.'" Here, this office again declines to view a procedural violation as technical on the same basis. See also 03-OMD-221.
6 Although the requirement that a public agency give notice of "the specific provision authorizing the closed session" was added in 1992 when the Open Meetings Act was amended, to reiterate, it does not supplant the duty of the agency to give notice in the open, public session of the general nature of the business to be discussed in closed session and the reason for the closed session. See 03-OMD-221.