Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Office of the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Adair County Hospital District Board of Directors violated KRS 61.810(1) at its March 29, 2011, regular meeting when it conducted a closed session "to discuss the potential retention of the interim CEO" pursuant to KRS 61.810(1)(f). In addition, we find insufficient proof in the record on appeal to affirm the Board's reliance on KRS 61.810(1)(c) and (f) to conduct a closed session "to discuss the Spectrum Health Partners report" in the course of the same meeting.
On March 30, 2011, Adair County Community Voice Publisher Sharon Burton submitted a written complaint to Jim Evans, Chairman of the Adair County Hospital District Board of Directors, in which she "objected to closed proceedings that were conducted as part of the Board's March 29, 2011, regular meeting. " Specifically, Ms. Burton alleged that the Board violated the Open Meetings Act by improperly discussing an assessment from Spectrum Health Partners, and agreeing to implement recommended changes, in a closed session conducted under authority of KRS 61.810(1)(g); by improperly discussing a former CEO under authority of KRS 61.810(1)(c); and by improperly discussing "contracts" under authority of KRS 61.810(1)(f). As a means of remedying these violations, she proposed, inter alia, that the Board provide her with an unaltered copy of the power point presented to the Board during the closed session as well as "any minutes, notes, records of final action and any documents created or reviewed during the closed session. "
The Board responded to Ms. Burton's complaint, through counsel, on April 5, 2011, acknowledging that it conducted the contested closed session to discuss "potential retention of an interim CEO through Spectrum Health Partners" and "the contents of a report prepared by Spectrum Health Partners." With reference to discussions concerning potential retention of the interim CEO, Board counsel explained:
The Board was clearly entitled to discuss this issue in executive session pursuant to KRS 61.810(1)(f). This was a discussion concerning the appointment of an individual employee of the Adair County Hospital District. The Board properly discussed this personnel issue relating to an individual employee in executive session and then took formal action in open session.
With reference to closed session discussion of the Spectrum Health Partners report, counsel disclaimed any error asserting:
[T]he Board was clearly entitled to discuss this report in executive session pursuant to KRS 61.810(1)(c) and (f). The Board will concede that KRS 61.810(g) [sic] was cited inappropriately, but the other cited sections of KRS 61.810(1) clearly apply. The Board's discussions surrounding the report pertained to potential litigation and to the potential appointment, discipline or dismissal of specific, individual employees. The Board took no final action with regard to the potential litigation and to the potential appointment, discipline or dismissal of the specific, individual employees, and thus there was no need to take formal action on the record in open session.
In closing, counsel advised Ms. Burton that the Board construed her demand for a copy of the Spectrum Health Partners report as an open records request and summarily denied the request on the basis of KRS 61.878(1)(j). Shortly thereafter, Ms. Burton initiated this appeal, noting that the Board Chairman "confirmed that the Board received an assessment from a consulting firm hired to review the hospital's financial operations, personnel, contracts, etc." and expressing the belief that the Board "discussed their contract with the consulting firm during the closed session. "
In supplemental correspondence directed to this office, the Board amplified, albeit minimally, on its position relative to invocation of KRS 61.810(1)(c) and (f) to support the closed session discussion of the Spectrum Health Partners report. Through counsel, the Board indicated that the report "contained information on specific individuals which might lead to discipline or dismissal of those employees," that it "pertained to potential litigation" that was "more than a remote possibility," and that "the closed session was necessary to discuss strategy regarding the potential litigation involving the Hospital." The Board did not identify the nature of the threatened litigation, who the adverse parties were, or whether the litigation was against or on behalf of the District and/or the Board, 1 but maintained that its actions were "fully compliant with the Open Meetings Act. " Respectfully, we disagree.
The Board's reliance on KRS 61.810(1)(f) to justify its closed session discussion concerning the "potential retention of the interim CEO" was misplaced. That exception authorizes public agencies to conduct closed session:
Discussions or hearings that might lead to the appointment, discipline, or dismissal of an individual employee, member, or student . . . . This exception shall not be interpreted to permit discussion of general personnel in secret[.]
With specific reference to this exception, the Attorney General has determined that "[a] public agency's authority to go into closed session relative to personnel matters is severely restricted," and that "[t]he only personnel matters that 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." 93-OMD-49, p. 3; OAG 90-125, p. 2. At page 3 of 97-OMD-110, we observed:
Prior to going into a 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; see also 97-OMD-124; 99-OMD-49; 99-OMD-94; 00-OMD-86; 06-OMD-257. Clearly then "matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be disclosed in closed session under authority of KRS 61.810(1)(f) . . . ." 00-OMD-86, p. 83.
In 94-OMD-63, the Attorney General held that a closed session discussion of the terms and conditions of an agency employee's continued employment was inappropriate. We distinguished the facts giving rise to that appeal from the issue before us in OAG 91-144, an advisory opinion recognizing the propriety of closed session contract negotiations pertaining to the possible appointment of a new agency employee. These decisions were synthesized in 96-OMD-97. In 96-OMD-97, this office was asked to determine if the Northern Kentucky University Board of Regents properly conducted a closed session discussion relating to the appointment and selection of an interim president. There we observed:
Among the statutorily recognized exceptions to open and public meetings is KRS 61.810(1)(f) which provides in part that discussion or hearings which may lead to the appointment, discipline, or dismissal of an employee can be conducted in a closed session. The Board was obviously interested in the candidate it was interviewing but there is no evidence that this particular person had actually accepted an offer of employment or that an offer was even extended. Since the Board authorized contract negotiations to be conducted with this person it seems obvious that no final decision had been made concerning his appointment. Most people under these circumstances would not accept an offer without knowing such things as salary or the length of the contract of employment.
In OAG 91-144, this office considered some basic principles of contract law and the applicability of KRS 61.810(6), now KRS 61.810(1)(f), to the discussion of the possible appointment of a person by a public agency. While we will not reiterate those principles of contract law in this decision, we did conclude in OAG 91-144 that the contract offer would most likely be accepted by the person after matters such as salary and length of the contract had been discussed and negotiated.
This office said in 94-OMD-63 that the public agency's reliance upon OAG 91-144 was inappropriate. The 1991 opinion dealt with negotiations pertaining to the possible appointment of a person by a public agency while the 1994 decision involved negotiations with an employee in an attempt to secure the continuance of her employment with the public agency. The latter situation is not included within the exception to an open and public meeting set forth in KRS 61.810(1)(f).
96-OMD-97, p. 2, 3. The Attorney General concluded that in the absence of a contract between the public agency and the applicant, KRS 61.810(1)(f) authorized closed session discussions that might subsequently result in the appointment of the applicant to the position. The converse of this proposition is, of course, equally valid.
The facts giving rise to this appeal are more closely analogous to the facts in 94-OMD-63 than the facts in 96-OMD-97. The Board acknowledges that the closed session discussion focused on securing the continued employment of the interim CEO and not on reviewing the comparative qualifications of competing applicants for the purpose of identifying the best qualified applicant to fill a vacant position. Although the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion relates to the continued employment of a current employee. Consistent with the rule of strict construction codified at KRS 61.800, and the longstanding position that the terms "appointment" and "reappointment" are not synonymous when the latter term is used to describe the continued employment of a current agency employee, we find that the Board violated KRS 61.810(1) when it conducted a closed session discussion of the retention of the interim CEO.
Additionally, we find that the record on appeal contains insufficient proof to support the Board's reliance on KRS 61.810(1)(c) and (f) "to discuss the Spectrum Health Partners report" in closed session. As noted, KRS 61.810(1)(c) authorizes closed session "discussions of proposed or pending litigation against or on behalf of the public agency. " The Board cites Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997) for the proposition that this exception applies to "matters commonly inherent to litigation such as preparation, strategy, or tactics," and that the litigation "need not be pending and may merely be threatened," but concedes that the exception is inapplicable if the threat of litigation is remote. As noted, KRS 61.810(1)(f) authorizes closed session discussions that "might lead to the appointment, discipline, or dismissal" of an employee, but expressly prohibits discussion of general personnel matters. Pursuant to KRS 61.815(1)(a) the Board was obligated to give notice "in regular open meeting . . . of the general nature of the business to be discussed in closed session [and] the reason for the closed session, " in addition to the specific provision of KRS 61.810 authorizing the closed session. The record on appeal indicates that the reason given for the closed session, and the description offered of the general nature of the business to be discussed, was "the Spectrum Health Partners report." In supplemental correspondence, the Board advised that the report "contained information on specific individuals that might lead to discipline or dismissal" or might result in litigation. Even with this additional information, we believe the Board's KRS 61.815(1)(a) compliance fell short of the statutory requirements found at KRS 61.815(1).
In Floyd County v. Ratliff, above at 924, the Kentucky Supreme Court declared, "[T]here must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting." Amplifying on this view, the Attorney General has determined that KRS 61.815(1)(a) contemplates notification that "include[s] 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 action." 00-OMD-47, p. 6. Clearly, "the Spectrum Health Partners report" does not satisfy this standard. As this office has observed, "[T]he Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of the language of the exception authorizing the closed session [, and, in this case, a vague reference to a consultant's report,] but less than a detailed description of the matter to be discussed" so as to avoid defeating the purpose which necessitated the closed session. 00-OMD-47, p. 6. Here, we lack sufficient information to assess the propriety of the Board's actions. To the extent that the Adair County Hospital District Board of Directors did not strictly comply with KRS 61.815(1)(a), as construed in Ratliff, above, we cannot affirm its invocation of KRS 61.810(1)(c) and (f) to justify the closed session discussion conducted on March 29, 2011. Accord, 03-OMD-221.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). Pursuant to KRS 61.846(5), 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 proceeding.
Distributed to:
Sharon BurtonBilly MabryJim Evans
Footnotes
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