Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Benham City Council violated the Kentucky Open Meetings Act during its April 12, 2012, meeting by going into closed session for the stated purpose of discussing "personnel, " and in discussing matters beyond the narrow scope of KRS 61.810(1)(f), during that closed session as prohibited under KRS 61.815(1)(d). In accordance with Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997), this office finds that in admittedly failing to cite KRS 61.810(1)(f), the specific exception upon which it was implicitly relying, the City Council violated the mandatory terms of KRS 61.815(1)(a); likewise, the City Council failed to provide notice of the "general nature of the business to be discussed in closed session, and the reason for the closed session" as required. Given the limited and conflicting evidence presented, this office is unable to conclusively determine whether the City Council also impermissibly discussed any "general personnel matters" during the closed session, rather than potential appointment, discipline, or dismissal of an individual employee (s) or member(s); if so, the City Council "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Id. Because the record on appeal is equally conflicting on the question of whether the City Council actually took any final action during its April 12 closed session, this office reminds the agency that KRS 61.815(1)(c) prohibits a public agency from doing so, but is unable to conclude with certainty that a violation of this provision was committed. 1
In a written complaint directed to Mayor John T. Dodd on April 21, 2012, concerning the City Council's April 12 meeting, Wanda Humphrey alleged the following violations of the Open Meetings Act:
1. Mayor Dodd adjourned this regular [C]ity [C]ouncil meeting without notifying the public of the "general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. "
2. Mayor Dodd and the Benham City [C]ouncil went into closed session without a vote of the [C]ouncil. KRS 61.815 subsection (b) states: "Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session. "
3. The Wednesday, April 18, 2012, edition of the Tri-City News reported on page 7 that when asked by Benham Power Board member Johnny North if a decision was made in executive session Mayor Dodd responded: "Yes, there was a decision made." The Tuesday, April 17, 2012, edition of the Harlan Daily Enterprise quoted Mayor Dodd as saying "The decisions we made in there will not be released until we talk to the people involved." Subsection (c) of KRS 61.815 states "No final action may be taken at a closed session. "
4. Mayor Dodd reported that decisions were made in executive session regarding two members of the Benham Power Board. Members of the Benham Power Board are not employees of the City of Benham. Under the Kentucky Open Meetings [A]ct the Mayor of Benham and the Benham City Council are only permitted to conduct an executive session for individual employees. They are not allowed to discuss nor make decisions in executive session on multiple employees. 2
As a means of remedying these alleged violations, Ms. Murphy proposed that Mayor Dodd "void all actions taken at the April 12, 2012, Benham City Council meeting."
In a timely written response, Mayor Dodd responded on behalf of the City Council, advising that he "asked for a motion to enter executive session to discuss personnel. Doug Robinson made the motion and Shirley Dodd signaled the second. Council approved, signifying that by rising to leave the meeting chambers." Mayor Dodd further advised "there may have been some confusion because an audience member asked a question about garbage. After a brief discussion on that, we exited the room." 3 Despite "personnel clearly being stated as the reason," Mayor Dodd acknowledged "that the KRS statute [sic] was not recited. However, there was no official action taken as a result of the executive session at the meeting, or since."
With regard to Ms. Murphy's allegation that no vote was taken, Mayor Dodd reiterated that a "motion and second were provided. The remaining members signified their approval either by nodding or standing." Mayor Dodd then "acknowledged" Ms. Humphrey's assertion that final action cannot be taken during a closed session per KRS 61.815, noting again that "there were no official votes taken upon returning to the public meeting." Citing 92-OMD-1688, Mayor Dodd asserted that "[p]olling of the council by the mayor . . . is not a legislative act." 4 Regardless, he continued, "no official vote or action was taken on personnel, as you are well aware since no changes in personnel have been made during or since, this meeting." In addressing Ms. Humphrey's final allegation, he again reiterated that "no official vote or action" was taken during or since the meeting. According to Mayor Dodd, "a mayor has the sole power to hire and fire as Kentucky is an at-will state. If or when an employee is hired or fired, council input nor their [sic] majority vote is officially needed. Council duties are legislative in nature." The issue raised is "administrative," he observed, and the Council has "no authority in that avenue of government." Because "the only official action the [C]ity [C]ouncil voted on was the approval of the previous minutes, approval of the financial statements, and the appointments made to the Tri-City Little League Board," and no "other official legislative action was taken" nor was any other vote taken, Mayor Dodd respectfully declined to adopt the proposed remedy. This appeal followed.
KRS 61.810(2) is not implicated in this case; however, inasmuch as no "official vote" was apparently taken here, this office must assume, in the absence of additional insight regarding the nature of the discussion or proof to refute his position, that Mayor Dodd was implicitly relying upon KRS 83A.130(3) in support of his assertion, which is accurate to the extent applicable, and was further asserting that in apparently discussing the potential dismissal of Board members with the City Council, he was "merely advising and updating the legislative branch[.]" However, as indicated above (note 2), per KRS 96.740 and Ordinance No. 8, the City Council must approve the appointments of the Mayor, and, in the absence of contrary facts or legal authority, it seems that authority would extend to dismissal under these circumstances.
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Based upon the unambiguous language of KRS 61.815(1), and governing case law, this office finds that the City 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. " If the City Council discussed any "general personnel matters" during the closed session, i.e., any personnel issues other than potential appointment, discipline, or dismissal of an individual employee (s) or member(s), it violated KRS 61.810(1)(f); however, if discussion was restricted to any of those permissible subjects, namely, dismissal of Power Board members, no violation was committed. Although taking final action during a closed session unquestionably constitutes a violation of KRS 61.815(1), the Mayor has adamantly denied that any was taken, and the conflicting evidence presented on appeal precludes a conclusive resolution of this issue.
Our starting point in analyzing 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), pursuant to which the following requirements must be met before holding a closed session;
(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
(b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
(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." Ratliff , above , at 923, 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 Ratliff, 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. . . . The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. [Citations omitted.]
. . .
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.
Ratliff, above, at 924 (emphasis added).
Of particular significance, this office has observed 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 Ratliff, 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. Here, Mayor Dodd has acknowledged that he did not specifically reference KRS 61.810(1)(f) , but instead merely cited "personnel" as the reason for the closed session. A generic reference to "personnel matters," or "personnel, " 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. 5 In failing to strictly comply with the requirements of KRS 61.815(1) prior to conducting its April 12 closed session, the City Council acted in contravention of Ratliff , above , the fundamental policy of the Open Meetings Act codified at KRS 61.800, and prior decisions of this office regardless of whether the discussion was actually restricted to a permissible topic or not.
Given this determination, the question becomes whether the discussion held in closed session exceeded the narrow scope of KRS 61.810(1)(f), upon which the City Council implicitly relied, 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 [.]" In applying this provision, commonly referred to as the "personnel exception" of the Act, this office has consistently observed that 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. " 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), as indicated, a public agency must state during open session 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," namely "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; 99-OMD-94; 03-OMD-148.
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. By enacting KRS 61.810(1)(f), the General Assembly "specifically intended to close discussions only of these three subjects due to the potential for reputational damage. Closed session discussions of other matters are expressly precluded by KRS 61.810[(1)(f)]." OAG 83-415, p. 2 (holding that public agency improperly relied upon KRS 61.810(1)(f) to conduct a closed session for the purpose of discussing an employee's resignation). 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.
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 (s)/member(s)), 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)), none of which the City Council did here. "Discussions between [agency] members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct." Ratliff, above, at 924. Mayor Dodd also failed to specify the general nature of the business discussed or which reason of those identified at KRS 61.810(1)(f) applied in responding to Ms. Humphrey's complaint. Neither the Mayor nor the legal counsel for the agency responded to her appeal or provided us with a copy of the minutes. According to a newspaper article of record, which is not dispositive but carries more weight given the lack of evidence provided, the Mayor and the City Council discussed "terms of board members and removals" and "talked about the grievance" that had apparently been filed. To the extent Mayor Dodd and the City Council discussed the potential discipline or dismissal, i.e., removal, of a Board member(s), 6 the agency did not exceed the scope of KRS 61.810(1)(f) as it has authority over the Board regardless of whether the members are "city employees" or not (see note 2); 7 however, if the agency discussed "terms of board members," a general personnel matter, it violated the Act in so doing.
With regard to whether final action was taken, the record on appeal is again conflicting at best. In her appeal, Ms. Humphrey asserted that she possessed a "statement from a council person, present, when in executive session Mayor Dodd had a roll call vote concerning with [sic] the dismissal of 2 members of the Benham Power Board[.]" However, she did not include such a statement with her appeal nor would it have been dispositive. Mayor Dodd has essentially acknowledged informally polling the members of the City Council, relying upon his presumed authority to act unilaterally, which is not entirely clear given the statutory requirement of approval by the City Council for appointment (see note 4), if not discipline or dismissal, but has repeatedly denied that any "official vote or action was taken" regarding "personnel. " However, the newspaper article upon which Ms. Humphrey relied, which is also referenced above, indicates that Mayor Dodd said "there was a decision made but we cannot...until we notify the people." In the absence of any evidence to refute this, or clarify what is meant by "decision," the assumption by Ms. Humphrey that an "official vote" was taken was more than reasonable. The law is unambiguous -- KRS 61.815(1)(c) expressly prohibits a public agency from taking any final action during a closed session. See 11-OMD-064 (vote to reject settlement offer in closed session constituted final action which violated KRS 61.815(1)(c)). Whether the agency has acted on its "decision" yet or not, such a vote would otherwise constitute a final action that violated the Act; 8 however, assuming the Mayor is authorized to impose discipline, or dismiss a Board member(s) without approval by the City Council (as Mayor Dodd argued), which is required to make appointments, the agency did not violate the Act in this regard.
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:
Wanda C. HumphreyJohn DoddRonald C. Cox
Footnotes
Footnotes
1 The record on appeal does not contain a copy of the minutes from the April 12 meeting nor did legal counsel for the agency, to whom this office faxed and mailed a copy of the notification of appeal, choose to respond.
2 Because the record on appeal was devoid of any reference to legal authority in support of either position, this office independently obtained a copy of the applicable Benham City Ordinance (Number 43) from the Benham City Clerk, pursuant to which "Section Two (2) of Ordinance Number Eight (8)" was amended to provide that the "Mayor of the City of Benham is hereby authorized to appoint a Board, the name of which shall be; Benham Power Board, which appointments shall be subject to the approval of the Council of the City of Benham, Kentucky, and which Board shall consist of five (5) residents of the City of Benham, Kentucky, . . .." In accordance with KRS 96.740(1), which mandates that a municipality "desiring to acquire and operate an electric plant" or now owning and operating an electric plant, must enact an ordinance which, among other things, must "authorize the mayor or chief executive to appoint a board, subject to the approval of the appointments by the governing body of the municipality," subsection (1) of City Ordinance Number 8 provides that the City of Benham "accepts and agrees to all of the provisions of KRS 96.550 to 96.900 . . . ."
3 In the absence of minutes from the meeting, or any objective proof to refute this account of what happened, the Attorney General has no basis to question Mayor Dodd's veracity or find that a violation was committed. KRS 61.815(1)(b) requires nothing more nor does it specify a particular method of signifying approval though express verbal agreement would certainly be preferable in order to avoid exactly this kind of dispute regarding whether a majority vote was achieved.
4 In 92-OMD-1688, which involved a city operating under a Mayor-Council form of government, such as Benham, in which broad administrative powers are reposed in the Mayor, including administration and implementation of an adopted budgetordinance, etc. under KRS 83A.130(3), the complainant alleged that a vote of City Council members purportedly conducted by a City employee via telephone per the mayor's request, led to purchase of recycling equipment in contravention of the Act. Finding no violation, the Attorney General reasoned:
No meeting was held as none was required at this time and thus the provisions of the Open Meetings Act are not applicable. The mayor, as the head of the executive branch of government, was merely advising and updating the legislative branch on the proceedings undertaken pursuant to the budget appropriation. . . . [I]t is our decision that the city . . . did not violate the Act with regard to the telephone calls made under the mayor's direction to the members of the city council concerning the recycling equipment.
92-OMD-1688, p. 3; compare 02-OMD-153 (distinguishing 92-OMD-1688 as the power to hire and fire city employees resided in the City Commission rather than with the Mayor, and series of less than quorum telephonic meetings violated KRS 61.810(2) because issue discussed, the employment status of a city employee, was "public business" about which the Commission had the option to take action); but see, 05-OMD-026.
5 A public agency is not required to identify by name the employee(s) (or member(s)) who will be discussed, nor is the agency restricted to discussing one employee at a time. 00-OMD-113, p. 4. Inasmuch as joint action by a group of members/employees may result in joint disciplinary action or dismissal by an employer, the Attorney General has expressly so recognized. 99-OMD-49, p. 4. To hold otherwise would place unjustifiable impediments on the ability of a public agency to efficiently discuss joint misconduct of public members/employees which might warrant disciplinary action or dismissal. Id.
6 For purposes of the Open Meetings Act, the term "member" is defined as "a member of the governing body of the public agency and does not include employees or licensees of the agency." KRS 61.805(4). In this context, the relevant definition of "removal" is: "Dismissal, as from office." The American Heritage College Dictionary 1177 (4th ed. 2002); See Kentucky Judicial Conduct Commission v. Woods, Ky., 25 S.W.3d 470, 473 (2000) (defining "Removal from office" as "Deprivation of office by act of competent superior officer acting within scope of authority"). This office has recognized "removal is the functional equivalent of dismissal in this context. In other words, removal is among those specific topics encompassed by the literal language of KRS 61.810(1)(f)." 05-OMD-086, p. 11.
7 See 01-OMD-18 (holding that the Richmond Board of Ethics properly invoked KRS 61.810(1)(f) to conduct a closed session for the purpose of having discussions which might have led to the imposition of discipline on the Mayor because its jurisdiction extends "both by statute and ordinance, to elected officials and employees of the city, including the Mayor").
8 InYeoman v. Commonwealth of Kentucky, 983 S.W.2d 474 (Ky. 1998), the Court recognized:
Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action. Taking action is defined by the Act as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body." KRS § 61.805(3).