Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Board of Trustees for the LaGrange Fire Protection District violated the 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 closed session during its June 14, 2011, meeting, and in discussing "general personnel matters" beyond the scope of KRS 61.810(1)(f), the provision upon which the Board implicitly relied in conducting the closed session, as prohibited by KRS 61.815(1)(d). The conflicting evidence of record precludes the Attorney General from conclusively resolving the latter question of whether the Board's discussion exceeded the scope of KRS 61.810(1)(f); however, the evidence confirms that it failed to comply with KRS 61.815(1)(a) before going into closed session. To the extent the Board discussed any general personnel matter(s), as opposed to strictly the possible "appointment, discipline, or dismissal of an individual employee, [or] member," the Board violated the Act. In failing to issue a written response to Robbie Smither's June 29, 2011, complaint within three (3) business days, the Board unquestionably violated KRS 61.846(1).
By letter directed to Board Chairman Craig Stodghill on June 29, 2011, Mr. Smither submitted the following complaint:
. . . Board Member Glauber asked Board Member Sitzler to leave the room, but to my knowledge, never stated the reason for his motion to enter the closed or executive session.
When the Board adjourned from closed session, the immediate matters of business I observed were Board Member Feigel moving to amend the policy which pertained to the members of the [B]oard. The motion, which passed, would prohibit the Chief or Assistant Chief from being a firefighter rep on the [B]oard. The next matter was a directive read by Board Member Alvey which discussed the [B]oard's expectation of the members, [and] the current morale of the department, among other things.
This leads me to believe that the [B]oard went into an illegal closed or executive session, discussing personnel matters that weren't specific to only one person, as pursuant to KRS 61.810(1)(f). The [B]oard cannot legally go into a closed or executive session to discuss general personnel matters.
To remedy this alleged violation of the Act, Mr. Smither proposed that the Board "discuss at a future meeting, in an open and public session, those matters that were discussed at the improperly called closed session on June 14, 2011." Mr. Smither further proposed that "[a]ny action taken as a result of the improperly closed session should be declared null and void."
Having received no response to his complaint, Mr. Smither initiated this appeal by letter dated July 8, 2011. Upon receiving notification of Mr. Smither's appeal from this office, James F. Williamson, Counsel for the LFPD, responded on behalf of his client, initially noting that "Mr. Smither's Complaint . . . did not specify a deadline for the District's response to that Complaint." In defense of the Board's conduct on June 14, Mr. Williamson asserted:
The purpose of the executive session conducted during the meeting of June 14, 2011, was to discuss personnel matters of the District relative to the discipline of certain personnel of the District. During the executive session, the conduct of several personnel of the District was discussed. The discussions dealt with the actions or, in some cases the lack of action, of individuals and their conduct[,] including the expectations of the Trustees. It was not intended that there would be a general discussion of personnel matters. The purpose of the closed session was to deal with individual matters and as has been noted in the case of [Lexington Herald Leader Co. v. University Presidential Search Committee, 732 S.W.2d 884 (Ky. 1987)], that [sic] the exception to the [Open Meetings Act's] requirement is designed to protect the reputation of individual persons, not to permit discussion of general personnel matters in secret. The [Board] had no desire to adversely affect the reputation of any of its employees or members, but did desire to evaluate individual members for possible discipline, if necessary, for their actions.
It was determined by the Trustees, during the executive session, that no individual disciplinary action needed to be taken but a general policy statement should be made during the open session of the meeting as contained in the attached Minutes. It should be noted that the Trustees affirmed that policy statement in their approval of the Minutes of the meeting of June 14, 2011.
The policy statement formulated by the Board, Mr. Williamson explained in closing, "was an attempt to deal with individual issues and to avoid disciplinary action against individual members."
Based upon the unambiguous language of KRS 61.815(1), and governing case law, this office finds that the Board violated KRS 61.815(1)(a) by going into closed session during its June 14 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. " If the Board discussed any "general personnel matters" during the closed session, as the Board's subsequent policy statements (documented in the minutes) led Mr. Smither to believe, it acted in contravention of KRS 61.810(1)(f) to that extent; however, this office does not have sufficient irrefutable proof that any such discussion occurred to make such a determination. The Board violated the mandatory language of KRS 61.846(1) in failing to issue a written response to Mr. Smithers' complaint.
The starting point for analysis of the issues presented is the fundamental proposition codified at KRS 61.800, which provides that "[t]he 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 1 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 that "[i]n 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)," this office believes 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.) See 03-OMD-221.
In this appeal, the minutes of the subject meeting indicate that "it was moved by Alvey and seconded by Fiegel to go into executive session to discuss personnel matters." The Board did not challenge Mr. Smither's account of the events in dispute nor did it specifically address the apparent non-compliance with KRS 61.815(1)(a) in responding to his appeal. A generic reference to "personnel matters," standing alone, simply does not constitute a "specific and complete notification. " Rather, a public agency "complies with the requirements of KRS 61.815(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; 09-OMD-172. 2 In failing to strictly comply with the requirements of KRS 61.815(1) prior to conducting its June 14 closed session, the Board 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.
Given this determination, the question becomes whether the Board improperly discussed "general personnel matters" during the closed session. Resolution of this issue turns on the mandatory language of KRS 61.810(1)(f), upon which the Board implicitly relied initially, and which it belatedly cited on appeal, authorizing 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. . . . This exception shall not be interpreted to permit discussion of general personnel matters in secret [. ]" (Emphasis added.) In applying this provision, commonly referred to as the "personnel exception" of the 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.
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 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 improper); 10-OMD-100 (City Council improperly discussed whether it was required to pay the former Mayor for unused vacation time in closed 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)), all of which the Board failed to do.
However, the Board explains on appeal that its purpose in holding the June 14 closed session "was to discuss personnel matters of the District relative to the discipline of certain personnel of the District." Apparently "the conduct of several personnel of the District was discussed" and those discussions "dealt with the actions or, in some cases the lack of action of individuals and their conduct[,] including the expectations of the Trustees." The Board ultimately decided that no "individual disciplinary action" was necessary. No hard evidence has been offered to refute the Board's response, nor did the discussion as described violate KRS 61.810(1)(f) assuming that such discussions "[may have led] to the appointment, discipline, or dismissal of an individual employee [or] member."
As reflected in the minutes of the June 14 meeting, however, immediately upon returning to open session Board Member Alvey "presented a policy statement from the Board of Trustees to the membership of the LaGrange Fire Department." Mrs. Alvey explained that "an organizational chart of the command staff should be provided to the Trustees by the Chief in the next 90 days, and decisions regarding appointments should be made in a timely fashion and should take no more than 30 working days." The Board "advised that monthly reports for 4502, 4503, 4504 and 4505 will be provided to the Secretary in a timely fashion in order that she may provide [them] to the [Board] prior to the Board Meeting. There will be no exceptions to this policy." The minutes further explain that the LFPD "will be run in a paramilitary way," and that "house captains will be responsible for the well-being of their stations," etc. Following two more paragraphs which summarize policies regarding part-time employees and the Training Division, the Chairman concluded by noting "that there has been a drop in the morale of the Department and a loss of respect toward fellow firefighters." Chairman Stodghill observed that the Board has "been dealing with personnel problems on some matters for over a year and those matters need to be resolved." The content and timing of these policy statements and personnel directives led Mr. Smither to reasonably conclude that the Board improperly discussed personnel matters "that weren't specific to only one person" in accordance with KRS 61.810(1)(f). Nevertheless, discussion of "a specific unnamed person or persons" was permissible, and this office is unable to find that a violation was otherwise committed given the conflicting evidence presented. If any discussion of "general personnel matters" occurred in closed session, the Board "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Ratliff, above, at 924.
In addition to violating KRS 61.815(1)(a), the Board also violated KRS 61.846(1), pursuant to which:
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 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. The Board failed to respond upon receipt of Mr. Smither's complaint. On appeal, the Board suggested that Mr. Smither was required to "specify a deadline for the District's response," evidencing a complete lack of understanding as to its duty under KRS 61.846(1). 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. In failing to do so, the Board violated the Open Meetings Act. Id. 97-OMD-43; 09-OMD-172.
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.
Distributed to:
Robbie SmitherCraig StodghillJames F. Williamson
Footnotes
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