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 City of Rockport violated provisions of the Open Meetings Act in regard to the notice provided for its special meeting on October 5, 2009, in the substance of the discussions conducted in closed session, or in other respects. For the reasons that follow, we find that the City violated the Act if the statutory notice procedures were not followed, although the record is insufficient to establish what occurred in that regard. We further find that the City violated KRS 61.846(1) by failing to make a written response to an open meetings complaint.
In a complaint dated October 16, 2009, addressed to each of the four city commissioners, Mayor Shirley Smith stated as follows, in pertinent part:
Because you are a member of the city council of Rockport, Kentucky, I am submitting to you a complaint concerning an action that took place at a city council meeting called on October 5, 2009. At that meeting, which was taped, the council unanimously asked for my resignation as Mayor.
However, citing KRS 610.800 to KRS 610.850, the council cannot legally go into a closed or executive session to discuss general personnel matters. The council also cannot discuss city business or personnel matters outside the framework of a legally called and posted meeting, such as telephone conversations or chance meetings. KRS 61.810(1)(f)
I am requesting that the council discuss at a future meeting, that is properly posted as an open and public session, those matters that were discussed at the improperly called closed session on October 5, 2009. According to the KRS statu[t]e cited above, any action taken as a result of improperly called session should be declared null and void.
(Emphasis in original.) Having received no response, Ms. Smith appealed to the Attorney General. This office received the appeal on November 23, 2009. In her appeal, Ms. Smith adds the following:
I am protesting the meeting that took place without the required 24 hour notification and posting where the council asked for my resignation, and that there was no prior notification of the agenda which would have allowed me time to secure the advice of council [ sic ].
In addition to the violations cited in this letter of appeal, as noted in the letters to the council members, there were meetings between at least two members at a church food pantry ? and discussions on the telephone which are described as violations of the open meeting laws. ?
The response to the appeal was dated November 30, 2009, and signed by all four city commissioners. The relevant portions are given below:
The closed meeting we had on October 5, 2009, was to discuss complaints all commissioners had received from the citizens of Rockport. There was a 24 hour notification and posting of this meeting. First we discussed a worker for our city whom we had received complaints from citizens about his work. This meeting was to compare information about these complaints, discuss his job performance and the number of hours he was working to get this work completed.
We also informed the Mayor about numerous complaints we had received from the citizens about her conduct ? and the fact that these citizens had requested that she be removed from office. We asked her at that time to consider resigning. First she agreed to resign, then changed her mind, and then agreed to resign again, but she did not put anything in writing. There was nothing said about voting her out of office.
In response to her claim that the open meeting laws were violated: Mrs. Roop and Mrs. Campbell both are volunteers at the local food pantry and will work together one or two Saturdays a month. While they were there one Saturday, a citizen came in the pantry and again complained about the Mayor's conduct at Rockport Days. They listened to this citizen, but did not discuss this with him. The only thing that was said after he left was that this wasn't going to go away and it would have to be addressed. They did not discuss what should be done or make any agreement between the two of them. As no action was taken nor any agreements made, we do not feel this qualifies as a meeting.
No defense is offered for the commissioners' failure to respond to Ms. Smith's original complaint. KRS 61.846(1) requires a public agency to issue a written response to an open meetings complaint within three business days. Accordingly, we find a violation of KRS 61.846(1) in that the city made no written response.
As for the substantive matters alleged in the complaint, we look first to the notice and posting requirements for special meetings under KRS 61.823. Subsection (3) provides:
The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
Subsection (4) of KRS 61.823 contains the following requirements:
(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. ?
(b) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
The parties fundamentally disagree as to whether the statute was complied with at all in regard to the October 5 meeting, and there is no documentary evidence in the record before us. Having set out the statutory provisions, we conclude that to the extent the City failed to meet any of these specific requirements, it violated the Open Meetings Act.
Turning to the incident involving two commissioners at the local food pantry, we are unaware of any rule, statute, or ordinance under which two out of four city commissioners would constitute a quorum. Since only "meetings of a quorum of the members" (or a series of meetings encompassing a quorum) can violate KRS 61.810, no violation occurred if only two commissioners were present. "Because there was no quorum, there was no meeting." 94-OMD-63, p. 3. Therefore, we need not decide whether any discussion of public business took place at the food pantry. 1
As for the discussion of personnel matters in closed session on October 5, 2009, we note that general personnel matters must be discussed in open session under KRS 61.810(1)(f). That exception, however, does permit "[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student." 2 Whereas Ms. Smith does not specify any "general personnel matters" that were allegedly discussed in closed session, the city commissioners identify two specific items: reviewing complaints against a city worker and requesting the resignation of the mayor. Since KRS 83A.140(3) (applying to cities under the commission plan) vests all administrative authority of the city in the commission and requires it to supervise "the conduct of all city officers and employees under its jurisdiction," we believe the discussion of complaints against a city worker falls within the scope of the KRS 61.810(1)(f) exception, as it might have led to that worker's discipline or dismissal.
Similarly, since KRS 83A.040(9) gives a municipal legislative body the power to remove "any elected officer" from office by a unanimous vote, we find that a discussion of the mayor's alleged misconduct and potential resignation, which might have led to her removal, was also within the meaning of the exception. The mayor being a member of the city commission under KRS 83A.140(2), the discussion is properly characterized as one which "might lead to the ? dismissal of [a] member." In neither case, apparently, was a vote or final action taken. Accordingly, unless other matters were discussed, the substance of what took place in the closed session on October 5, 2009, did not violate 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.
Hon. Shirley SmithSarah Campbell, CommissionerNancy Roop, CommissionerDonna Harris, CommissionerTania Burns, CommissionerE. Glenn Miller, Esq.
Footnotes
Footnotes
1 Ms. Smith's letter of appeal does not specify whether the alleged telephone conversations involved more than the two commissioners who were present at the food pantry. A series of telephonic meetings encompassing a quorum of commissioners in which the same public business was discussed in an attempt to circumvent the Act could constitute a violation of KRS 61.810(2), 09-OMD-093, but we do not have such a specific allegation before us.
2 The issue of whether proper procedure was followed for going into closed session pursuant to KRS 61.815 has not been raised or commented upon by the parties.