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 City of Bardstown violated the Kentucky Open Meetings Act in failing to specify which of the permissible subjects (appointment, discipline or dismissal) identified at KRS 61.810(1)(f) was being contemplated, as well as the reason for the closed session, prior to entering into closed session under that authority during its January 26, 2012, special meeting. The City Council referenced KRS 61.810(1)(f), the "specific provision of KRS 61.810 authorizing the closed session, " but did not otherwise comply with notice requirements codified at KRS 61.815(1)(a). In admittedly failing to expressly provide notice of the "general nature of the business to be discussed in closed session, and the reason for the closed session, " the City Council violated that provision. See
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997); 12-OMD-118. Because the level of specificity required under KRS 61.815(1)(a) to provide notice of a closed session is not required for agency compliance with notice requirements for a special meeting per KRS 61.823(3) , and the revised agenda for the City's January 26 meeting announced that a closed session would be held "Pursuant to KRS 61.810(1)(f) [sic] Discussions which might lead to the appointment, discipline, or dismissal of an individual employee, " the Attorney General is not prepared to say this description was vaguely worded such that fair notice could not be imputed to the public. See 10-OMD-017. The City has acknowledged that other subjects of discussion exceeded the narrow scope of the item(s) listed on the agenda for the January 26 special meeting and thus violated the Act. Tangential issues or underlying concerns that Mr. Brumley has expressed at length regarding the validity of city ordinances that were also included on the agenda, etc. are simply not justiciable in this forum. See 12-OMD-080.
By letter directed to Mayor William S. Sheckles on July 17, 2012, Kevin Brumley alleged that during the January 26, 2012, special meeting of the Bardstown City Council Mayor Sheckles repeated the "same exact Open Meetings violations" that prompted his June 4, 2012, complaint regarding the agency's January 24, 2012, meeting, "plus 3 or 4 additional violations due to the 'special' nature of the meeting." (Emphasis omitted.) Beginning on page six of his written complaint, Mr. Brumley identified specific allegations, namely, that the City Council's agenda on the special meeting notice was "defective" in failing to provide sufficient notice of the reason for the closed session per KRS 61.810(1)(f); that discussion of "extraneous matter" such as reading a letter from a citizen(s) expressing appreciation for Chief Marlin Howard and the Fire Department for their quick response and professionalism during a fire run, the need to revise the "Code Book" and/or the formation of a "Selection Committee" and the hiring procedure for selecting a new chief, violated KRS 61.823(3); that the City Council failed to give proper notice per KRS 61.810(1)(f) prior to holding a closed session during its January 26 meeting; and, finally, that the minutes of that meeting do not "set forth an accurate record of votes and actions" per KRS 61.835. (Emphasis omitted.) To remedy these alleged violations, Mr. Brumley proposed that the Mayor "declare the special meeting of January 26, 2012 null and void in its entirety," publicly apologize to the public and the press, cease repeating these violations of the Open Meetings Act, take "proper steps" to declare ordinances B2010-01 and B2010-02 "null and void, " and, finally, agree to undertake specified efforts to ensure that city officials better understand the Open Meetings Act.
In a timely written response, City Attorney Thomas A. Donan responded on behalf of the City Council, addressing only the specific allegations of Mr. Brumley's complaint set forth beginning at page 6 of his July 17 letter. With regard to Mr. Brumley's claim that the notice of the January 26 special meeting was defective, Mr. Donan noted that Mr. Brumley referenced 12-OMD-118 (In re: Kevin Brumley/Bardstown City Council, issued June 28, 2012). However, that decision "did not address the specificity required for an Agenda item. 12-OMD-118 makes it clear that the motion to go into executive session must be specific as to whether it deals with appointment, discipline or dismissal or one or more of those categories." Inasmuch as the agenda identified which statutory exception of those codified at KRS 61.810(1) was being relied upon "and the basis for the executive session, " it did not violate the Act in his view. Mr. Donan acknowledged that reading the letter of appreciation by a citizen(s) "was contrary to KRS 61.823(3) as stated in 12-OMD-080 rendered on April 17, 2012," and that "the discussion of formation of a 'Selection Committee' and the hiring procedure for a new Fire Chief" also violated that provision. 1
The City Council agreed that a violation of KRS 61.810(1)(f), "as stated in 12-OMD-118," was committed; however, Mr. Donan noted that Mr. Brumley's complaint, in part, states that no "reason" was provided for going into closed session though minutes of the meeting reflect that KRS 61.810(1)(f) was correctly referenced, "three reasons were stated for going into Executive Session, " and the "error was in failing to exclude discipline exception." 2 With regard to his claim regarding compliance with KRS 61.835, Mr. Donan advised Mr. Brumley that his complaint "does not specify what votes and actions you claim are inaccurate in the" minutes of the January 26 meeting and requested clarification. Mr. Brumley initiated this appeal instead. 3 "Simply put," Mr. Brumley observed, the City Council "got caught less than 48 hours later doing exactly what they got caught doing" on January 24, 2012, as held in 12-OMD-118. (Original emphasis.) In his eight-page letter of appeal, Mr. Brumley also reiterated all of his earlier arguments at length, noting the points on which both parties agree but repeatedly emphasizing that Mr. Donan "is mute on all 8" of his proposed remedies, with the exception of his first, in response to which Mr. Donan gave his "opinion that neither the Mayor nor the City Council has the unilateral authority to declare" the January 26 special meeting null and void. However, Mr. Donan also noted that "the City Clerk and I have discussed the Attorney General's [Decisions] in relation[] to the statutes in order to prevent any subsequent errors." 4
Upon receiving notification of Mr. Brumley's appeal, Mr. Donan elaborated upon his client's position, correctly observing that Mr. Brumley's complaint "centers around KRS 61.810(1)(f), KRS 61.815[(1)] and KRS 61.823[(3)]." Having quoted each of those statutory provisions, Mr. Donan reiterated the agency's position regarding the allegedly "defective" notice of its January 26 special meeting, further acknowledging that it lacked "the specificity required for a motion," but maintaining that "it did comply with KRS 61.823 by giving fair notice to the public of the particular topics to be discussed or acted upon." Mr. Donan successfully distinguished the vague description ("to enter into executive session" ) challenged in 07-OMD-099. 5
Based upon the unambiguous language of KRS 61.815(1), as well as governing case law and prior decisions by this office applying that provision, the Attorney General finds that the City Council violated KRS 61.815(1)(a) by going into closed session during its January 26 special meeting without also giving notice of the "general nature of the business to be discussed," and "the reason for the closed session, " in addition to citing the "specific provision of KRS 61.810 authorizing the closed session. " In admittedly discussing subjects beyond those identified on the agenda, however briefly, the City Council also violated KRS 61.823(3); however, the description of the agenda item provided on the notice was not so vaguely worded as to preclude the public from having sufficient notice of the contemplated personnel discussion.
In 01-OMD-175, this office was asked to determine if special meeting agenda items that included "discussion of old business," "discussion of new business, " "open to floor," and "open to counsel," were adequately specific to satisfy the requirements of KRS 61.823(3). The Attorney General concluded that the language of that provision, coupled with the statement of legislative policy codified at KRS 61.800, 6 and the Kentucky Supreme Court's declaration that "[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," mandated "special meeting agendas that give fair notice of the particular topics to be discussed or acted upon." 01-OMD-175, p. 1, citing
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). In order to implement "'the intent of the legislature in enacting the Open Meetings Act . . . to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies,'" the Attorney General noted, the Act establishes specific requirements which a public agency must satisfy before conducting special meetings, including those codified at KRS 61.823(3), pursuant to which a "'public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice. '" 01-OMD-175, pp. 4-5, citing
E. W. Scripps Company v. City of Louisville, 790 S.W.2d 450, 452 (Ky. App. 1990). This office further observed:
In construing this provision, the Attorney General has recognized that although "[t]here is no definition of the term 'agenda' and no explanation as to what constitutes a satisfactory agenda" in the Act, "'agenda' is defined in part in Webster's Third New International Dictionary (1966) as 'a list or outline of things to be done, subjects to be discussed, or business to be transacted.'" 97-OMD-43, p. 3. This definition, in our view, contemplates sufficient specificity in the description of the items to be discussed to ensure fair notice to the public. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as "old business," "new business, " "open to floor," and "open to council." Further, such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
01-OMD-175, p. 5. Accordingly, this office concluded that "the practice of including open-ended agenda items like old and new business, or open to counsel and floor, is inconsistent with the natural and harmonious reading of KRS 61.823(3), as well as the statement of legislative policy codified at KRS 61.800, and the goal of maximizing notice to the public." Id. at 6, 7.
Applying these principles here, as in, for example, 03-OMD-149 (item described as "Policy and Bylaws"), this office finds that the language in dispute, "Pursuant to KRS 61.810(1)(f) [sic] Discussions which might lead to the appointment, discipline, or dismissal of an individual employee, " while perhaps not a model of specificity, also cannot be properly equated with impermissibly vague descriptions like "old business" or "new business. " Consequently, this office must respectfully disagree with Mr Brumley's allegation that the City Council violated KRS 61.823(3) in this regard. See 10-OMD-017 (holding that "Minutes -- October 7, 2009" was not impermissibly vague) .
The City Council, has, for the most part, acknowledged the alleged violations of KRS 61.815(1) and 61.810(1)(f). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1), which provides, in relevant part, as follows:
(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;
(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., above . Decisions issued by the Attorney General over the years regarding 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 during 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.
Id. at 924 (emphasis added). Referring to language employed by the Supreme Court in Ratliff, 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." Id. 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 has recognized that a "notification which does not include a statement of the specific exception(s) relied upon to conduct a closed session, a description of the general nature of the business to be discussed in, and the reason(s) for, the closed session is inadequate." 03-OMD-221, p. 4; 12-OMD-102. With regard to KRS 61.810(1)(f) specifically, a public agency complies with KRS 61.815(1)(a) "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))[.]" 12-OMD-102, p. 9.
As previously indicated, Mr. Brumley's complaint regarding the City Council's January 24, 2012, meeting raised these identical allegations. The following excerpt from 12-OMD-118, above, is therefore controlling:
Mr. Brumley makes four substantive complaints regarding the closed session. First, he asserts that the Mayor failed to state the reason for the closed session. Secondly, he alleges that the general nature of the business to be discussed in closed session was not stated. These notices are both required by KRS 61.815(1)(a)[. . . .] His fourth complaint, which he describes as related to these, is that the Mayor recited all three actions listed in KRS 61.810(1)(f) ("appointment, discipline, or dismissal of an individual employee" ) without specifying which of these applied. It has long been clear that a public agency invoking this subsection must "announc[e] 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 (emphasis added)
.
Id., pp. 2-3. "Since the Mayor failed to indicate which action was contemplated, and there is no suggestion that all three could have been at issue," here, as in 12-OMD-118, this office must conclude "that the closed session was conducted in violation of the Open Meetings Act. " Id., p. 3. The City Council has essentially conceded this error and further discussion is unnecessary; likewise, the agency has conceded that Mayor Sheckles' reading of the letter of appreciation received "was contrary to KRS 61.823(3) as stated in 12-OMD-080" and that "the discussion of formation of a 'Selection Committee' and the hiring procedure for a new Fire Chief" also violated that provision. 7 In light of this admission, the Attorney General declines to belabor the point and refers the parties to 12-OMD-080, pp. 9-10 in particular, for the applicable legal analysis.
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:
Kevin BrumleyWilliam S. ShecklesThomas A. Donan
Footnotes
Footnotes
1 However, the City Council disputed that other statements referenced in the complaint were made during the closed session, explaining that after voting to enter into closed session, "there was a break to allow the members of the public to exit and for the legislative body members to take a bathroom break." Mr. Donan confirmed with City Clerk Bobbie Blincoe that the closed session "had not been called to order and it is not tape recorded." Because the remarks (concerning the need to revise the "Code Book," etc. ) were made during a "recess," he concluded, there was no violation.
It suffices to say that a CD recording of the meeting enclosed with Mr. Brumley's appeal seems to validate Mr. Donan's account of the aforementioned events notwithstanding Mr. Brumley's emphatic opposing view, though a conclusive resolution of this factual question, or the related ones involving the accuracy of the clock in the meeting room, the propriety of the city ordinances also on the agenda, etc. is beyond our scope of review. This office reminds the City Council, to the extent necessary, that discussion of any subject other than potential appointment, discipline, or dismissal of an employee(s) under authority of KRS 61.810(1)(f) was impermissible.
2 Because Mayor Sheckles actually did reference the applicable statutory exception, KRS 61.810(1)(f), this office presumes that in so asserting Mr. Donan was acknowledging that his error was in failing to specify that potential appointment or dismissal would be discussed rather than potential discipline.
3 As in 12-OMD-139 (Mr. Brumley alleged "a number of improprieties with respect to the minutes that were not raised in his original complaint" and this office declined to review them), this office makes no finding with regard to alleged violation of KRS 61.835 because, as Mr. Donan correctly argued on appeal, the allegation was not adequately raised in the original complaint. It is axiomatic that public agencies cannot direct the modification of the draft minutes "to show something other than what . . . actually occurred at the previous meeting." OAG 77-494, p. 1; 10-OMD-017, p. 8.
4 In relevant part, KRS 61.846(1) provides:
The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. 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. . . .
On appeal, Mr. Donan clarified that his original response "stated the remedial actions had already been taken" by the City Council and expressed the referenced opinion regarding Mr. Brumley's proposed remedy of declaring the meeting null and void. Because the role of this office in adjudicating a dispute under the Open Meetings Act is limited to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," the Attorney General declines to comment on the remedies proposed or implemented. 08-OMD-164, p. 2; 11-OMD-162.
5 With regard to Mr. Brumley's contention "that there should have been a motion, second and vote to come out of Executive Session on the recorded (Open Session) portion of the meeting[,]" it suffices to say that Mr. Donan is correct in asserting that "interpretation is not procedurally correct." The Open Meetings Act contains no such requirement. Compare KRS 61.815(1)(b). Further discussion regarding the parties' differing versions of that portion of the meeting is therefore unwarranted.
6 KRS 61.800 provides:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 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 for by law shall be strictly construed.
7 In addition to a closed session pursuant to KRS 61.810(1)(f), the items on the agenda for the January 26 special meeting included " FIRST READING -- Ordinance No. B2012-01 -- Amendment to Chapter 36 of the Bardstown Code of Ordinances -- Selection, Appointment or Hiring of a Bardstown Fire Chief" and " FIRST READING -- Ordinance No. B2012-01 -- Amendment to Chapter 33 of the Bardstown Code of Ordinances -- City Officials." Accordingly, discussion of whether to form a Selection Committee and/or the hiring procedure for a new Fire Chief would arguably have been expected to follow the first reading of the former Ordinance.