Opinion
Opinion By: Jack ConwayAttorney General;Amye L. BensenhaverAssistant Attorney General
Open Meetings Decision
The News-Enterprise appeals the Elizabethtown City Council's denial of reporter Gina Clear's November 3, 2014 open meetings complaint. Ms. Clear alleged that the council violated the Open Meetings Act in the course of its September 15, 2014 regular meeting by conducting a closed session discussion of a reprimand issued by the Hardin County Ethics Board to Elizabethtown City Councilman William Bennett. As a means of remedying the alleged violation, Ms. Clear proposed that the council "admit to the violation during an open meeting, conduct an open meeting where the reprimand is made public, and pledge not to violate the act again."
The council defended the closed session in a timely written response. Relying on KRS 61.810(1)(c) and (f), the council advised:
The City and its Ethics Board appointees had been involved in prior litigation involving the Hardin County Ethics Board's reprimand of Councilman Bennett and considered future litigation to be threatened and likely. The result of any Ethics Board investigation of any member of City Council can require consideration of discipline of that member. Councilman Bennett is a member of the Elizabethtown City Council.
In supplemental correspondence addressed to this office, the council explained, by way of background, that on September 12, 2014 Councilman Bennett received an amended reprimand from the Ethics Board. During its September 15 regular meeting, the council continued, a closed session was conducted to deliberate "on future acquisition or sale of real property by the city; to discuss the general nature of existing and possible litigation by the city; or to discuss personnel which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student." The focus of that closed session, the council stated, was a review of the contents of the reprimand by City Attorney Deborah L. "Dee Dee" Shaw and the council members. It was the council's position that KRS 83A.040(9) authorizes it to discipline a council member for "misconduct, incapacity, or willful neglect in the performance of.. duties," and that the closed session discussion was proper because it might lead to a decision by the council to discipline Councilman Bennett. Because there is no clearly identified actual or threatened litigation involving the reprimand and no indication that the closed session discussion focused on litigation "strategy, tactics, [or] possible settlement," 1 we find that the record on appeal does not support the council's invocation of KRS 61.810(1)(c). However, we affirm the council's reliance on KRS 61.810(1)(f) based on its affirmation that the topic discussed in closed session was possible discipline or dismissal of Councilman Bennett arising from the action for which he was reprimanded by the Ethics Board. 2
KRS 61.810(1)(f) authorizes public agencies to conduct closed session discussions or hearing that might lead to the appointment, discipline, or dismissal of an individual employee, member, or student. In construing this exception to the Open Meetings Act, the Kentucky Supreme Court observed:
A public agency's authority to go into closed session relative to personnel matters is severely restricted. Under the personnel exception, a public agency may enter closed session only for "discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student." KRS 61.810(1)(f). These three topics are the only personnel matters a public agency may discuss in closed session. Discussions of any other matters are expressly precluded. The statute itself underscores the specific nature of the exception by explicitly stating the exception does not "permit discussion of general personnel matters in secret." Id .
Carter v. Smith, 366 S.W.3d 414, 420 (Ky. 2012). In Carter, the Court rejected the agency's invocation of KRS 61.810(1)(f) as legal authority for a closed session discussion of an employee's resignation "because an employee's resignation is not one of the three permissible personnel topics enumerated in KRS 61.810(1)(f)." Id . The Court also rejected invocation of the exception to justify the closed session negotiation of a consulting contract with the employee who resigned because the "discussion concerned hiring [him] as an independent contractor [,]? the personnel exception explicitly applies only to discussions of the 'appointment, discipline, or dismissal of an individual employee, member, or student'? [and] an independent contractor is distinct from an employee..." 3 Id . Consistent with its earlier position that "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference, or scrutiny," 4 the Court concluded that the agency "expanded the intended scope of the personnel exception and improperly concealed matters otherwise appropriate for public view." Id. at 422.
We find no indication that the council "expanded the intended scope of the personnel exception" in the appeal before us. It is undisputed that the Hardin County Board of Ethics reprimanded Councilman Bennett, and the council affirms that the focus of its September 15 closed session discussion was the content of that reprimand issued by the Ethics Board and the possibility of further discipline by the council. Given the council's authority under KRS 83A.040(9) to remove any elected officer from office by unanimous vote "in case of misconduct, incapacity, or willful neglect, " this was a proper subject for a closed session discussion. 5 Unlike Carter v. Smith , where a challenge was successfully raised to the status of an independent contractor as an "employee, member, or student," there was no question about the applicability of KRS 61.810(1)(f) to Councilman Bennett who is "a member of the governing body of the public agency" within the meaning of KRS 61.805(4). Although the council made no decision and took no action as a result of the closed session, we find no basis on which to conclude that the topic discussed was unauthorized.
We note certain irregularities in the council's implementation of KRS 61.815(1)(a) which establishes the requirements for conducting a closed session. That provision states that "[n]otice 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 [.]" The council indicates that "[t]he reasons given in the open meeting. . for going into closed session included 'To conduct deliberations on future acquisition or sale of real property by the city; to discuss the general nature of existing and possible litigation by the city; or to discuss personnel which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.'" The council failed to identify the "specific provision of KRS 61.810 authorizing the closed session, " "the general nature of the business to be discussed" and "the reason for the closed session. " Its notice to the public constituted little more than a recitation of the language of the exceptions. Because KRS 61.810(1)(b) and KRS 61.810(1)(c) were inapplicable, the council should have announced in the open meeting that, pursuant to KRS 61.810(1)(f), it would conduct a closed meeting to discuss possible discipline or dismissal of a council member for the purpose of protecting the member's reputational interest until a final decision on removal was made.
At page 3 of 97-OMD-110 this office observed, "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,? either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons," along with the reason for the closed session and the specific exception authorizing the closed session. KRS 61.815(1)(a); 99-OMD-94; 03-OMD-148; 12-OMD-102. As we have observed, a scatter gun approach to KRS 61.815(1)(a) compliance is ill-advised. It is, in fact, improper if the matters discussed in closed session bear no resemblance to the matters "publicly announced prior to convening the closed session. " KRS 61.815(1)(d). The Elizabethtown City Council should be guided by these observations in conducting future closed sessions.
Either party may appeal this decision 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.
Jack ConwayAttorney General
Amye L. BensenhaverAssistant Attorney General
#470
Distributed to:Gina ClearEdna BergerMatthew C. Hess
Footnotes
Footnotes
1 Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012).
2 The council does not elaborate on its original invocation of KRS 61.810(1)(b), relating to deliberations on the future acquisition or sale of real property, as justification for the closed session discussion of Councilman Bennett's reprimand and possible discipline or dismissal by the council. In the absence of any claim that the council actually discussed the acquisition or sale of real property, we caution the council against a scatter gun approach to KRS 61.815(1)(a) compliance.
3 The Court analyzed this distinction:
An independent contractor is distinct from an employee, the former being someone who is hired to undertake a specific project and is free to choose the means and methods for collecting the work and the latter being someone who works under an express or implied contract for an employer who determines the means and methods by which the employee performs and completes the work.
4 Floyd County v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997) cited in Carter at 422.
5 KRS 83A.040(9) makes no reference to discipline of an elected official. It provides, instead, only for removal. Bearing in mind that removal under this provision includes the right to a full public hearing and the right of appeal to the circuit court, we know of no authority in which the term "dismissal," as employed in KRS 61.810(1)(f), has been construed so narrowly as to exclude "removal." See 12-OMD-102, p. 5, (affirming city council's closed session discussion of "potential discipline or dismissal, i.e. , removal, of a Board member" under KRS 61.810(1)(f)) and recognizing that "[i]n this context, the relevant definition of 'removal' is: 'Dismissal,' as from office") citing The American Heritage College Dictionary 1177 (4h ed. 2002). At page 11 of 05-OMD-086, the Attorney General recognized that "removal is the functional equivalent of dismissal? [and] is among the specific topics encompassed by the literal language of KRS 61.810(1)(f)." Compare Carter at 421 (distinguishing resignation from dismissal and holding that "[t]he General Assembly determined the specific personnel subjects that can be discussed in closed session and it expressly did not include an employee's resignation").