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 Butler County Fiscal Court violated KRS 61.810(1) 1 by conducting an unauthorized closed session at its June 28, 2011, special meeting to discuss "mak[ing the] occupational tax officer a full time position (with more duties) effective July 1." Because the original open meetings complaint did not allege violation of KRS 61.823(3) arising from the content of the special meeting agenda, we are foreclosed from deciding this issue.
On June 29, 2011, Robert D. Cron submitted a complaint to Butler County Judge/Executive David Fields in which he alleged that "the decision as to whether or not to make the occupational tax officer a full time position, or for it to remain as a part time position, does not fall within any of the requirements for discussing the issue in closed session. " As a means of remedying the alleged violation, Mr. Cron proposed that Judge Fields better acquaint himself with the Open Meetings Act and adhere to the Act at future fiscal court meetings.
On behalf of Judge Fields, Butler County Attorney Richard J. Deye responded to Mr. Cron's complaint on July 7, 2011. Mr. Deye defended the legality of the closed session, observing:
Included within the realm of the decision [whether to expand the duties of the occupational tax officer] would be who will fill the full time position. It is possible to assume that the position would be held by the same person holding the position now but that is an assumption. The decision to make the position full time could entail the employment of a different person. The changing of the position from part time to full time could include discussion as to whether or not the person currently holding the part time position should be discharged and a new person sought to fill the full time position. There are also issues as to rate of pay . . . [and] payment of benefits.
In the absence of evidence in the record on appeal that the fiscal court discussed the "dismissal" of the current occupational tax officer "for cause," or the particular qualifications of specific candidates for "appointment" to the full time position, we find that its June 28 closed session discussion constituted a violation of KRS 61.810(1).
KRS 61.810(1)(f) authorizes public agencies to go into a closed session for:
Discussions 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 specific reference to this provision, commonly referred to as the "personnel exception" to the Open Meetings Act, this office has opined:
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, at page three, and OAG 90-125, at page two.
97-OMD-110, p. 3; see also 97-OMD-124; 99-OMD-49; 99-OMD-94; 00-OMD-86; 03-OMD-089.
These decisions echo an earlier open meetings opinion in which the Attorney General recognized that:
The legislature specifically intended to close discussions only of these three subjects due to the potential for reputational damage. Closed discussions of 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. It is for this reason that 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.
The record before us is devoid of evidence that the June 28 closed session discussion exposed the current occupational tax officer, or candidates for the proposed full-time position, to potential or actual reputational damage. "The potential for reputational damage, often cited as the rationale for invoking KRS 61.810(1)(f) [in the context of appointments] exists where several individuals apply for employment, and some must be eliminated from consideration on the basis of their lesser qualifications. " 02-OMD-21, p. 6. The potential for reputational damage in the context of discipline or dismissal where allegations of misconduct have been leveled against current employees, but are not yet substantiated, is obvious. With reference to the current office holder, the fiscal court advances no claim that his performance has been unsatisfactory or that the closed session discussion focused on potential dismissal "for cause." Instead, the fiscal court acknowledges that his dismissal, if necessary, is an unavoidable consequence 2 of the reclassification of his position. Indeed, the record on appeal suggests that his performance is such that he is being considered for the reclassified position.
Conversely, the record on appeal contains no indication that other candidates for appointment to the position were discussed in the closed session. The fiscal court asserts that the decision to reclassify the position "could entail the employment of a different person, " and that discussions relating thereto "could include discussion as to . . . a new person . . . to fill the full time position," but does not state that specific candidates were evaluated in the June 28 closed session or that individual reputational interests were at stake. Clearly, a discussion concerning the salary and benefit package associated with the new position is impermissible under the referenced exception, as a discussion of general personnel matters, unless an offer has been extended to an individual applicant and negotiations are underway to secure his employment. See 96-OMD-97; OAG 91-144; compare 94-OMD-63 (KRS 61.810(1)(f) does not permit closed session discussions focused on securing continued employment of current employee by renegotiating terms and conditions of employment).
Here again, the record on appeal is devoid of evidence that the Butler County Fiscal Court engaged in negotiations with an individual applicant to whom an offer had been extended, but not yet accepted, in the course of its June 28 closed session. Consistent with 96-OMD-97, the fiscal court was not permitted to conduct closed session discussions with the current occupational tax officer aimed at renegotiating the terms and conditions of his continued employment in the reclassified position. Simply put, the Butler County Fiscal Court offers no set of facts and/or legal argument that support its position, and its dismissive attitude relative to Mr. Cron's complaint, 3 is, at best, disturbing. The allegations leveled against the fiscal court are by no means a matter of mere "semantics, " but are instead rooted in the public's right to know. We therefore find that the fiscal court violated KRS 61.810(1) by conducting an unauthorized closed session at its June 28, 2011, special meeting.
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:
Robert D. CronDavid FieldsRichard J. Deye
Footnotes
Footnotes