Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal arising from the actions of the Greenup County Extension District Board at its April 2, 2012, special meeting, and the Board having failed to respond to the complaint giving rise to the appeal, as well as this office's notification of receipt of the appeal, we find that the Board violated KRS 61.846(1) by ignoring the complaint and appeal. Additionally, the Board violated KRS 61.810(1), KRS 61.815(1)(d), and KRS 61.823(3) if, in fact, the special meeting agenda indicated that the budget would be the only topic discussed and the Board discussed budgetary and/or general personnel matters in closed session.
In a written complaint directed to Board President Tim Albert, and delivered by registered mail on April 5, 2012, Alice Brown complained that the Board improperly discussed the budget in a closed session conducted under ostensible authority of KRS 61.810(1)(f). 1 As a means of remedying the alleged violation, she proposed that the Board, "in an open and public session, . . . [p]resent, explain, and discuss the budget that was to be presented at the April 2, 2012, meeting, in its entirety . . . [and] any changes to the budget that were previously presented at the March 12, 2012, meeting . . . ." Having received no response to her complaint, Ms. Brown initiated this appeal.
On April 25, 2012, this office transmitted notification of receipt of Ms. Brown's open meetings appeal by fax and U.S. Mail to the Board. On May 1, 2012, County Extension Agent Linda Hieneman faxed a one page document to this office in which she advised that counsel for the Board would "reply to the claim." No such reply reached this office.
The Greenup County Extension Board violated KRS 61.846(1) by failing to notify Ms. Brown in writing, and within three business days, whether it acknowledged the violation, agreeing to implement the proposed remedial measures or whether it denied the violation, defending its actions by citation to "the specific statute or statutes supporting the . . . denial and a brief explanation of how the statute or statutes apply." This violation was exacerbated by the Board's failure to respond to the notification of receipt of Ms. Brown's open meeting appeal issued by this office.
Having raised no defense to the claim that its actions violated the Open Meetings Act, we find that if, in fact, the Board's notice of its April 12, 2012, special meeting indicated that the budget was the only item to be discussed, and if the Board discussed that topic in closed session, the meeting violated KRS 61.810(1). Budget discussions do not fall within one of the thirteen exceptions to the statutory requirement that "[a]ll meetings of a quorum of the members of any public agency at which any business is discussed or at which any action is taken by the agency, shall be open meetings open to the public at all times . . . ." KRS 61.810(1). If the Board moved to conduct the closed session under authority of KRS 61.810(1)(f), 2 and the discussion focused on budgetary matters, even as those matters affect agency personnel, the discussion violated KRS 61.815(1)(d). Discussions of budgetary matters are not equivalent to discussions of personnel matters that might lead to the appointment, discipline, or dismissal of an employee, member, or student and were therefore not "publicly announced prior to convening the closed session. " KRS 61.815(1)(d);
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997). 3 If the Board moved to conduct the closed session under authority of KRS 61.810(1)(f), and the discussion focused on "appointment, discipline, or dismissal of an individual employee, member or student," the discussion violated KRS 61.823(3). The special meeting agenda indicated that only the budget would be discussed and therefore discussion at the special meeting was not "limited to items listed on the agenda in the notice. " The record on appeal is devoid of any conflicting factual account, and we therefore assume the accuracy of Ms. Brown's account.
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:
Alice BrownTim AlbertLinda S. HienemanMichael Wilson
Footnotes
Footnotes
1 Ms. Brown alleges that the Board "did so in violation of the Kentucky Open Meetings Act, KRS 61.810(1)(f)," explaining that the Board "cannot legally go into closed session to discuss general personnel matters." From this we infer that a motion was made to conduct a closed session pursuant to KRS 61.810(1)(f), notwithstanding identification of the budget as the single topic to be discussed on the special meeting agenda. Because the Board did not respond to either Ms. Brown's complaint or the notification of her appeal, we assume the accuracy of her statement of facts.
2 KRS 61.810(1)(f) permits public agencies to conduct:
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[.]
3 In so holding, we remind the Board that both budgetary matters and general personnel matters are unauthorized topics for closed session discussion.