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 Trimble County Water District No. 1 violated the Open Meetings Act in failing to comply with all of the requirements codified at KRS 61.815(1)(a) which "shall be met as a condition for conducting a closed session" authorized under KRS 61.810, before going into both of the closed sessions conducted on February 26, 2014, and in discussing general personnel matters beyond the scope of the specific provision that was relied upon, KRS 61.810(1)(f) , 1 as prohibited by 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 failing to cite KRS 61.810(1)(f), the specific exception upon which it was implicitly relying, the District violated the mandatory terms of KRS 61.815(1)(a); likewise, the minutes of the meeting reflect a failure by the District to provide any 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 evidence presented, this office is unable to conclusively determine whether the District also impermissibly discussed any "general personnel matters" during the closed session, rather than strictly the potential appointment, discipline, or dismissal of an individual employee (s) or member(s); if so, the District "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Id. In any event, "[d]iscussions 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. " Id. at 924.
By letter directed to Chairperson Wayne Smith on March 27, 2014, Darra J. Smith advised, "I am not satisfied that the Rules of Procedures were followed in my recent circumstances leading to my resignation." In relevant part, Ms. Smith advised:
On February 26, 2014 the meeting began and the meeting was recorded for the record. During this meeting an Executive Session was called immediately after the public comment period by Randy Stevens, Treasurer, and seconded by Doug Stark, Secretary, with no reason or vote. The agenda was then followed up to New Business on the agenda, Randy Stevens, Treasurer, called for Executive Session, Doug Stark seconded the motion, with no reason or vote.
The Board excused themselves, and others from the meeting room, and asked that I and another employee remain in the room with Ms. Baxter (the Attorney for the Water District). Ms. Baxter stated that the Board had made a motion in the earlier Executive Session, giving myself and another employee the option to resigning [sic] with severance pay of $ 6000.00 or she (Ms. Baxter) would be back at the end of the day to decide what we wanted to do. . . .
Among other complaints not justiciable in the context of an Open Meetings Act, such as "the validity of the motion stated to me by Ms. Baxter on behalf of the Board of Commission, in the 2nd Executive Session" and "the validity of holding my severance pay for release of claim against" the District, Ms. Smith questioned whether the "proper procedure" was followed before "the 1st Executive Session called between Public Comment and Minutes of the Meeting held on February 26, 2014, without reason and no vote called." Ms. Smith also questioned whether the "proper procedure" was followed before "the 2nd Executive Session on February 26, 2014 without reason and no vote." In order to remedy the alleged violations, Ms. Smith was "open to discussion and negotiation on this matter."
Upon receiving notification of Ms. Smith's appeal from this office, Ruth H. Baxter, legal counsel for the District, responded on behalf of her client. Ms. Baxter initially noted that Ms. Smith's complaint did not reference any provisions of the Open Meetings Act nor did it state any violation of KRS 61.800, et seq. 2 Rather, Ms. Smith appeared to complain regarding the agency's perceived noncompliance with Robert's Rules of Order during the February 26 meeting, as well as personnel issues, neither of which is governed by the Open Meetings Act. 3 She then observed that Ms. Smith actually recorded the minutes for the meeting and "those present will acknowledge that a motion was made, seconded, and the vote carried the Commissioners into that session. The attached minutes taken at the meeting state[, 'Motion carried.']" According to Ms. Baxter, the closed session was "for the purpose of discussing personnel which could lead to the discipline and/or dismissal of individual employees. No other matters were discussed during the executive sessions. No action was taken at the conclusion" of either closed session. 4 "If it is preferable for the minutes to reflect the purpose of the executive session, " Ms. Baxter continued, "then the District can amend its minutes to reflect that the matter was related to personnel discipline. " Finally, Ms. Baxter asserted that "there is no prohibition under the Open Meetings Law to when an executive session may be called. Similarly, Robert's Rules of Order allow executive sessions to be called whenever there are sufficient votes to approve the motion to go into executive session. " In sum, the District does not believe that Ms. Smith's complaints have any merit.
Based upon the unambiguous language of KRS 61.815(1), and governing case law, this office finds that the District violated KRS 61.815(1)(a) by going into closed session during its February 26 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 District 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, discipline or dismissal of individual employees, no violation was committed. The minutes of record, which presumably set forth "an accurate record of votes and actions" taken during the meeting per KRS 61.835, do not support Ms. Smith's allegation that the District also failed to comply with KRS 61.815(1)(b). Because KRS 61.835 provides that a public agency shall record "minutes of action taken at every meeting . . ., setting forth an accurate record of votes and actions taken" at every meeting, the District cannot remedy its noncompliance after the fact by modifying the minutes of its February 26 meeting "to show something other than what actually occurred[.]" OAG 77-494, p. 2 (holding that "it is legal to correct the minutes according to the truth" but altering the minutes to reflect something other than what actually occurred "would be tantamount to falsification of records"); 04-OMD-179; 10-OMD-017.
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; 12-OMD-102.
The minutes of the District's February 26 meeting, in relevant part, read as follows:
Motion made by Stevens to go to executive session, seconded by Stark. Motion carried.
Motion made by Stark to leave executive session/ return to regular session, seconded by Stevens. Motion carried. No action was taken.
. . .
New Business
Motion made by Stevens to go back into executive session, seconded by Stark. Motion carried.
Motion made by Stark to leave executive session and return to regular session, seconded by Stevens. Motion carried.
Motion made by Stevens to authorize the Board Chair with the assistance of legal counsel to attend to the personnel needs of the [D]istrict including any terminations along with pending or resulting hiring opportunities, seconded by Stark. Motion carried by unanimous vote.
The minutes demonstrate that the District complied with KRS 61.815(1)(b); however, noticeably absent is any reference to KRS 61.810(1)(f) (also lacking from the District's appeal response), which presumably means that none was made prior to either closed session. This office has consistently recognized that a generic reference to "personnel matters," or "personnel, " standing alone, simply does not constitute a "specific and complete notification. " See 12-OMD-102. It stands to reason that failing to cite any provision of KRS 61.810, or even attempt to describe the "general nature" of the business to be discussed and/or the reason for the closed session does not suffice. Rather, a public agency complies with the requirements of KRS 61.815(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) , 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 to authorize the closed session (KRS 61.810(1)(f))[,]" none of which the District did here. 09-OMD-171, p. 6; 10-OMD-017. 5 In failing to strictly comply with the requirements of KRS 61.815(1)(a) prior to conducting its February 26 closed sessions, the District 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. The fact that no action was taken does not alter this conclusion. See KRS 61.810(1); 06-OMD-211.
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:
Darra J. SmithWayne SmithRuth J. Baxter
Footnotes
Footnotes
1 KRS 61.810(1)(f), upon which the District implicitly relied, authorizes 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[.]"
2 Pursuant to KRS 61.846(1), a complainant "shall submit a written complaint to the presiding officer of the agency suspected of the violation of" the Open Meetings Act, stating the circumstances which constitute an alleged violation" and stating "what the public agency should do to remedy the alleged violation." This provision does not require a complainant to reference a specific provision of the Act. However inartfully drafted, Ms. Smith's complaint stated the circumstances which allegedly constituted a violation(s) of the Act in questioning whether the District followed "proper procedure" before conducting each closed session, i.e. , complied with requirements for conducting a closed session per KRS 61.815(1), and proposed a remedy; nothing else was required. See 04-OMD-164. Accordingly, the District was required to issue a written response within three business days of receipt and violated the Act in failing to comply with KRS 61.846(1).
3 Robert's Rules of Order are not part of the Open Meetings Act; consequently, alleged violations of the Rules cannot be resolved in the context of an Open Meetings Appeal. 09-OMD-188, p. 4; see 05-OMD-117, p. 2 ("the Open Meetings Act does not establish rules of procedure relating to the conduct of meetings").
4 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); 00-OMD-113; 10-OMD-100. The record on appeal is devoid of evidence to refute the District's position that both closed sessions were held only for the purpose of discussing "personnel which could lead to the discipline and/or dismissal of individual employees." Even assuming the discussions were so restricted, the District violated KRS 61.815(1)(a) and (d) as proper notice was lacking.
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.