Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Mt. Vernon City Council violated the Kentucky Open Meetings Act in failing to comply with any 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, before going into a closed session during its April 19, 2010, meeting, and in discussing general personnel matters beyond the scope of the specific provision upon which it presumably relied in conducting the closed session, KRS 61.810(1)(f), as prohibited by KRS 61.815(1)(d). Based upon the unrefuted evidence of record, this office finds that both violations were committed. The Council also took final action during the improperly held closed session, in direct contravention of KRS 61.815(1)(c), and violated KRS 61.846(1) in failing to issue a written response within three business days of receiving Don Jones' April 21, 2010, complaint.
By e-mail directed to City Clerk Jeannette Robinson on April 21, 2010, which Mr. Jones asked that she "please forward or hand . . . to the Mayor," he submitted a complaint alleging that the Council, of which he is a member, "erred by going into executive session Monday night, April [19], 2010," by discussing "City business" that "involved public funds" and therefore "should have been in the open," and in taking a vote during the closed session. As a means of remedying these alleged violations, Mr. Jones proposed that the Mayor "set a special public meeting to rectify our mistake and to inform the public of [its] business." Because Ms. Robinson promptly advised Mr. Jones that she would "give a copy of this email to the Mayor when he comes in," Mr. Jones indicated that he would not bring a copy to City Hall that morning. Although KRS 61.846(1) provides that a "person shall submit a written complaint to the presiding officer of the public agency suspected of" violating the Open Meetings Act, public agencies can waive this requirement expressly or by a course of conduct, and the Council did so here; accordingly, further discussion of this procedural requirement is unwarranted.
Having received no response to his complaint, Mr. Jones initiated this appeal by letter 1 dated April 27, 2010, explaining, in relevant part, as follows:
During the City's regular [C]ouncil meeting on April 19, 2010, there was a point in the meeting when the Mayor declared that we must go into executive session. We did so in just that fashion, and proceeded to walk next door to the Mayor's office. After we were seated, the Mayor explained that we were there because the former Mayor (Clarice Kirby) had requested that the City pay her [for] some fifty (50) days [of] unused vacation time. Previously Mayor Cromer had sent a copy of the City Employee Manual pertaining to vacation time along with a request to the [Kentucky League of Cities]. He had done this asking for an opinion from the [KLC] on whether or not we were obligated to pay Kirby for her vacation time.
The [KLC] had replied that since the Mayor is an elected official and not an employee that she was not eligible for any vacation pay due to the way the ordinance was originally written. Given this information from the [KLC], the Mayor suggested that perhaps we could pay Kirby [for] 24 days (the maximum that an employee could carry over) plus 2 days for the months of January and February 2010. There was a motion, second, and a 4 to 1 vote. I voted no, and once councilperson was not present. We then proceeded back to the meeting room where the meeting was adjourned. No mention was made of the meeting's actions or vote.
According to Mr. Jones, the Mayor did not respond to his request "except to tell the [ Mt. Vernon Signal ]", which Mr. Jones had notified of his complaint, that he would not comply.
Upon receiving notification of Mr. Jones' appeal from this office, Jerry J. Cox, City Attorney, responded on behalf of the Council. Mr. Cox initially conceded that the Council "failed to come back into a public session and announce the actions it had taken in the executive session. " However, the Council maintains that meeting in closed session was "proper as they were discussing a personnel matter which is one of the exceptions to the Open Meetings law." Mr. Cox further asserted that "[t]here was a brief oversight in not returning to the public meeting and announcing the action that was taken[,]" but indicated that the Council "plans to rectify that at its next regular meeting. "
Based upon the unambiguous language of KRS 61.815(1), and governing case law, this office finds that the Council violated KRS 61.815(1)(a) by going into closed session during its April 19 meeting without giving notice of the "general nature of the business to be discussed," "the reason for the closed session, " and the "specific provision of KRS 61.810 authorizing the closed session. " In discussing "general personnel matters" during the closed session, the Council acted in contravention of KRS 61.810(1)(f); likewise, the Council violated KRS 61.815(1) by taking final action during the closed session. Finally, the Council violated KRS 61.846(1) in failing to issue a written response to Mr. Jones' complaint in a timely manner.
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)-(n). 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:
(Emphasis added.) 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, 955 S.W.2d 921, 923 (Ky. 1997), citing E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 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, above, 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).
Of particular significance, this office has observed 2 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, above, 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.) To summarize, "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.
In this appeal, the record is devoid of any indication that the Council provided any notice prior to entering into the closed session at issue. The Council did not challenge Mr. Jones' account of the meeting in response to his complaint or address the Council's apparent non-compliance with KRS 61.815(1)(a) in responding to his appeal. A declaration by the Mayor that a closed session is necessary, standing alone, simply does not constitute a "specific and complete notification. " In failing to strictly comply with the requirements of KRS 61.815(1) prior to conducting the closed session held on April 19, the Council acted in contravention of Floyd County Board of Education, above, 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 question becomes whether the Council 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), 3 upon which the Council implicitly relied, and 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 [.]" (Emphasis added.)
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, supra, citing E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 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.
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 (emphasis added); 03-OMD-148; 00-OMD-113. 4
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 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 (KRS 61.810(1)(f)). It is undisputed that the Council discussed whether the City was required to pay the former Mayor for unused vacation time, which is clearly a "general personnel matter," as opposed to any of the specifically authorized subjects of possible appointment, discipline or dismissal of an individual employee or member, during the closed session. On appeal, the Council has conceded as much; however, its interpretation of KRS 61.810(1)(f), that "discussing a personnel matter . . . is one of the exceptions to the Open Meetings law," is contrary to the unambiguous language of that exception. In admittedly discussing a general personnel matter, the Council "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public[,]" in violation of the Open Meetings Act. Ratliff, above, at 924. Further, in stating that it "failed to come back into a public session and announce the actions it had taken in the executive session, " and that "[t]here was a brief oversight in not returning to the public meeting and announcing the action that was taken" the Council acknowledged a clear violation of KRS 61.815(1)(c), pursuant to which "[n]o final action may be taken at a closed session. "
In addition to the aforementioned violations that were committed prior to, as well as during the April 19 closed session, the Council also violated KRS 61.846(1), which provides, in relevant part as follows:
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. . . .
(Emphasis added.) In construing the operation of KRS 61.846(1), this office has observed:
The statute 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 evidenced by the record, the Council did not respond upon receipt of Mr. Jones' complaint. On appeal, the Council offered no explanation for the failure to respond in a timely 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, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029, p. 4. Simply put, KRS 61.846(1) requires a public agency to issue a written response within three business days of receiving a complaint, and the Council's failure to comply with KRS 61.846(1) constituted another violation of the Open Meetings Act. Id. 00-OMD-142; 97-OMD-43; 96-OMD-261.
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.
Don JonesGary CromerJerry J. Cox
Footnotes
Footnotes
1 Although Mr. Jones also requested the opinion of this office as to whether the City "can pay former Mayor Kirby with public funds[,]" and how the City "can recoup the public's money if she has already been paid" improperly, both of these issues are beyond our scope of review under KRS 61.846(2).
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2 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.'"
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3 Pursuant to KRS 446.080(4), this office "must construe all words and phrases according to the common and approved uses of language." The Attorney General is "not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994)(citation omitted).
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4 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.
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