Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Joint Board of Ethics of the Cities of Bardstown, Fairfield, and County of Nelson violated KRS 61.823(3) by discussing non-agenda topics, KRS 61.810(1) by conducting an unauthorized closed session, and KRS 61.815(1)(a) by failing to state the reason for the closed session, at its July 24, 2012, special meeting. The record on appeal substantiates the claimed violation of KRS 61.815(1)(a) only.
On August 21, 2012, Kevin Brumley submitted a written complaint to Board Chairperson Christina Bradford in which he alleged that the board:
1. Discussed non-agenda topics relating to "futuristic electronic filing of financial disclosure, . . . a website, open records, and scanning of records . . ." in contravention of KRS 61.823(3);
2. Retired to executive session pursuant to KRS 61.810(1)(f) for "discussions or hearings that might lead to the dismissal or discipline of an 'individual employee, '" specifically an assistant county attorney against whom an ethics complaint was filed for alleged abuse of his prosecutorial discretion, 1 in contravention of KRS 61.810(1); and
3. Failed to observe the requirements for conducting a closed session by stating the reason for the closed session in contravention of KRS 61.815(1)(a).
As a means of remedying these alleged violations, Mr. Brumley proposed, inter alia , that the board undertake an open meetings training initiative, issue a written apology to the assistant county attorney named in the complaint, and nullify any action taken at the July 24 meeting.
In a timely written response, Chairperson Bradford denied each of these allegations. With regard to the alleged violation of KRS 61.823(3), she explained:
On the agenda under new business, Item B is entitled "2012 Statement of Financial Interest". Therefore, this discussion was not off topic. The discussions related to potentially filing a 2012 Financial Disclosure Statement on line and to providing notice of the requirement to file the disclosure statement along with the potential effect that scanning records would have on the custodian and her ability to respond to Open Records Requests concerning Open Records request for each Statement of Financial Interest. All of the subjects discussed were related to the filing of the 2012 Statement of Financial Interest.
With regard to the alleged violation of KRS 61.810(1), Chairperson Bradford responded:
The complaint seems to claim that this is a violation because the ethics issue raised by Mr. Luckett was a legal ethics complaint governed by the Kentucky Bar Association and not related to the Local Ethics Ordinance itself.
The Amended Ethics Ordinance adopted by Nelson Fiscal Court provides under Section 4: Definitions . . . . (E) "EMPLOYEE." Means any person, whether full-time or part-time, and whether paid or unpaid, who is employed by or provides service to the city/county. The term "employee" shall not include any contractor or subcontractor or any of their employees.
Subparagraph (H) defines "OFFICER." Means any person, whether full-time or part-time, and whether paid or unpaid, who is one of the following: . . . (7) The County Attorney. Therefore, the Ethics Board had jurisdiction . . . .
. . .
[T]he complaint related to STANDARDS OF CONDUCT, SECTION 5 Conflicts of Interest in General . Every officer and employee of the city and county and every city/county agency shall comply with the following standards of conduct:
In subsequent correspondence, the board acknowledged that it had no authority to dismiss an assistant county attorney but asserted that its ordinance invests it with authority to issue a cease and desist order, issue a public reprimand, order the violator to pay a civil penalty, or recommend to the appropriate governing body that the violator be sanctioned. Ordinance No. 150.102-2 Section 26(H)(1)-(4). The board also provided documentation supporting its position that the county attorney and his assistants are compensated for their legal services to Nelson County by the county.
With regard to the alleged violation of KRS 61.815(1)(a), Chairperson Bradford advised:
The reason for the Closed Session was to discuss two potential ethics violations. Audio Tape at 27:31 - 27:37. Implicit in the reason for going into Closed Session to discuss potential ethics violations as the need to protect the privacy of the persons who are the subject of the complaint. Therefore, there was no violation of the statute as alleged.
In support, she cited 09-OMD-169. 2 We address Mr. Brumley's allegations seriatim .
KRS 61.823(3)
The record on appeal does not support Mr. Brumley's claim that the board violated KRS 61.823(3) when it discussed "futuristic electronic filing of financial disclosure, . . . a website, open records, and scanning of records" in the course of discussing Item B of its July 24 special meeting agenda: "2012 Statement of Financial Interest." While he is entirely correct that KRS 61.823(3) limits discussions and action at a special meeting "to items listed on the agenda in the notice, " it does not restrict discussion of matters directly related to that item or require agency members to measure each comment they intend to make against a crippling standard of absolute issue identity. We are satisfied that the comments to which Mr. Brumley objected related to the filing of the Statement of Financial Disclosure and the opportunity to promote public access to the Statement by scanning it and posting it on the agency's website. Accord 97-OMD-43 (board of education did not violate KRS 61.823(3) by discussing nonrenewal of superintendent's contract under the agenda topic for renewal and/or action on superintendent's contract); compare 99-OMD-213 (fiscal court violated KRS 61.823(3) by discussing personnel policy under agenda topic for setting tax rate and construction of new jail facility).
KRS 61.810(1)
The record on appeal does not support Mr. Brumley's allegation that the board violated KRS 61.810(1) when it invoked KRS 61.810(1)(f) as the basis for conducting an executive session for "discussions or hearings that might lead to the dismissal or discipline of an 'individual employee, '" namely an assistant county attorney against whom a complaint was filed under Ordinance No. 150.201-2 Section 5(B). KRS 61.810(1)(f) authorizes closed session "[d]iscussions or hearings that might lead to the appointment, discipline, or dismissal of an individual employee, member, or student" but prohibits "discussion of general personnel matters in secret." The board did not conduct a discussion of general personnel matters under KRS 61.810(1)(f) in contravention of the statute's express language. Nor did it exceed the scope of its authority in discussing possible discipline of an assistant county attorney. The county attorney and his assistants provide part-time legal services to the county 3 and receive compensation from the county for those services. They are therefore employees of the county within the meaning of the revised ethics ordinance. The named assistant county attorney is alleged to have used his office to secure an advantage for his neighbor by declining prosecution, an allegation that, if substantiated, falls within the zone of conduct prohibited by the ordinance. Finally, the board did not lack authority to discipline, or recommend dismissal, had it elected to charge the "offending" county employee with violation of Section 5(b) of its ethics ordinance. Discussions relating to the decision whether to charge the employee fell squarely within the parameters of KRS 61.810(1)(f) insofar as the discussions might have led to the discipline or dismissal of the employee. Accord 01-ORD-18, p. 7, (holding that an ethics board "may discuss in closed session whether the allegations state a minimal factual basis to constitute a violation and a complaint should issue"); see also OAG 81-413, p. 2, (recognizing that "a closed session can be held on a personnel matter without formal charges being made against the person who is the subject of the session. Such a discussion could be entirely preliminary to deciding either to reject the idea of disciplinary or dismissal action or could be preliminary to a decision to make formal charges and hold another hearing"). Mr. Brumley's allegation that the board violated KRS 61.810(1) therefore lacks merit.
KRS 61.815(1)(a)
The record on appeal supports Mr. Brumley's allegation that the board violated KRS 61.815(1)(a) by failing to state the reason for the executive session. That statute provides:
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 [.]
Although the board largely complied with this provision by citing the specific provision of KRS 61.810 authorizing the closed session and describing the general nature of the business to be discussed, the board did not state the reason for the closed session. The latter requirement is not satisfied when that reason is "implicit." While the general nature of the business to be discussed in, and the reason for, an executive session are inextricably intertwined, they are separate legal requirements. The first identifies, in general terms, the subject to be discussed. The second identifies the rationale supporting the agency's deviation from the prevailing rule of openness for the public good. With regard to invocation of KRS 61.810(1)(f) that rationale has often been identified as the avoidance of potential reputational damage to the subject of the executive session while the matter is proceeding. See, e.g., 11-OMD-115, p. 2, and authorities cited therein. The board's failure to identify this, or some other reason, for its July 24 executive session constituted a violation of KRS 61.815(1)(a). In all other respects, its conduct was consistent with the requirements of the Open Meetings Act.
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 BrumleyChristina BradfordThomas A. Donan
Footnotes
Footnotes
1 The allegation of abuse of prosecutorial discretion arose from the assistant county attorney's decision not to issue criminal charges against the complainant's neighbor for an alleged traffic violation. We do not address the jurisdictional question Mr. Brumley attempts to raise as it relates to the authority of the Kentucky Bar Association to discipline attorneys and the authority of the Board of Ethics to discipline employees, as that term is defined in the amended ethics ordinance, who are also attorneys.
2 We do not believe this open meetings decision supports the board's position. In it, we declared that the Board of Ethics for the Cities of Bardstown, Fairfield, and the County of Nelson violated KRS 61.815(1)(a) by failing to give notice in open session of the general nature of the business to be discussed and the reason for the executive session.
3 See KRS 69.210(1), (3), and (4).