15-OMD-142

15-OMD-142

August 5, 2015

In re:        Andy Tucker/Warren County Rescue Department

Summary:        Warren County Rescue Department is a “public agency” within the meaning of KRS 61.805(2)(f) and its Board of Directors therefore violated the Open Meetings Act in failing to comply with all notice requirements codified at KRS 61.815(1)(a) before holding a closed session during its March 25, 2015, special meeting and in failing to comply with all notice requirements codified at KRS 61.823(3) and (4) prior to its March 25 and 26, 2015, special meetings.  The Board also violated KRS 61.846(1) in failing to issue timely written responses to written complaints regarding these meetings.           

Open Meetings Decision

        Andy Tucker initiated three separate but verbatim appeals dated July 13, 2015, per KRS 61.846(2), challenging the actions of the Warren County Rescue Department (WCRD)¹ Board of Directors (“Board”) during and in advance of special meetings that were held on both March 25 and 26, 2015.  By separate but nearly identical written complaints directed to Board Chairperson Deborah Williams,² per KRS 61.846(1), Mr. Tucker alleged that the Board failed to comply with notice requirements for special meetings codified at KRS 61.823(3) and (4)(a), (b), and (c), on both occasions, and further violated the Open Meetings Act by discussing personnel matters beyond the limited scope of KRS 61.810(1)(f) during those meetings, thereby depriving him of the right to a public hearing.  Mr. Tucker’s third “complaint” was deficient as it focused exclusively on alleged improprieties related to his April 16, 2015, “appeal hearing” and failed to state circumstances which allegedly constituted a violation of the Open Meetings Act per KRS 61.846(1). Accordingly, this office is precluded from addressing the merits of that complaint in this decision.³  See 10-OMD-120.  Mr. Tucker correctly observed, in relevant part, that the Board consists of seven members, four of which are appointed by the Warren County Judge Executive and three of which are elected by the “[g]eneral staff” of the WCRD.   

        The Attorney General is not empowered to “adjudicate a dispute relating to interpretation of, and compliance with, a public agency’s bylaws [or city ordinances, unrelated statutory provisions, etc.]” in this forum. Id., p. 2; 12-OMD-080.  Rather, this office has a limited role in adjudicating disputes arising under the Open Meetings Act, which is narrowly defined at KRS 61.846(2), pursuant to which the Attorney General “shall review the complaint and denial and issue within ten (10) days, excluding Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.”  This office has declined to “decide whether the procedures relative to the termination of a [public] employee were properly interpreted or administered.”  10-OMD-023, p. 5. Our decisions “involve the application and interpretation of the requirements of the Open Meetings Act, and are in the nature of questions of law.”  00-OMD-142, p. 6. Based upon the undisputed facts presented, this office concludes that WCRD is a “public agency” within the meaning of KRS 61.805(2)(f) and was therefore required to comply with provisions of the Open Meetings Act.  Insofar as the Board failed to comply with all of the statutory notice requirements for special meetings codified at KRS 61.823 in advance of the special meetings held on March 25 and 26, 2015, failed to comply with KRS 61.815(1)(a) prior to a closed session discussion(s) held on March 25 or engaged in discussion(s) which exceeded the narrow scope of KRS 61.810(1)(f) during said closed session, the agency violated the Act. The Board also violated KRS 61.846(1) in failing to issue a timely written response to Mr. Tucker’s written complaints.⁴ 

        Quoting KRS 61.810(1) and 61.810(1)(f), as well as KRS 61.823(3) and (4)(a) – (c),⁵ in both complaints, Mr. Tucker framed his complaints in the following manner:

The meeting[s] held on March 25 [and 26], 2015 was never announced to the general staff members including myself. The meeting agenda was never published or sent to myself or other members showing items to be discussed including personnel matters involving myself. The meeting date and location was also changed to another location other than the regular meeting location without the new meeting location, date and time being announced.

At that meeting, the Board of Directors voted to go into closed session to discuss personnel issues involving myself without giving me the opportunity to be present to address those concerns, restricting my rights to a public hearing if requested. The Board of Directors restricted my access by not informing me they were meeting to discuss personnel issues involving me. The Board took actions without being fully informed or allowing myself to address my concerns before actions and votes were taken[.]

Mr. Tucker identified the allegedly improper actions taken as follows:

• accepting his unauthorized “resignation” (March 25);

• suspending him from the Chief’s position for 30 days “due to misconduct, malfeasance and failure of duties” (March 25);  

• voting on whether to elect a new Chief (March 25);

• legal counsel and Warren County Attorney recommending his termination (March 26);

• voting to remove him as Chief and terminate employment as paid administrator.

To remedy the alleged violations of the Act, Mr. Tucker proposed that the Board “discuss at their earliest convenience, in an open and public session, those matters that were discussed at the improperly called” meetings held on March 25 and 26, 2015, and that any of the actions taken during the improperly called special meetings be declared null and void.  Upon receiving notification of Mr. Tucker’s appeals from this office, legal counsel for the Board responded on its behalf.  Quoting the definition of “public agency” codified at KRS 61.805(2), the Board first advised that WCRD “is a Kentucky non-profit corporation in good standing” and is “considered a 501(c)(3) corporation pursuant to the Internal Revenue Code.”  WCRD “receives minimal funding from the County as most of its funding comes from private donations and fundraising. Additionally, while there is an Affiliation Agreement between the County and [WCRD], the County has no control over the decision making of the governing body as the Board has its own decision making process.”  The affidavit of Chairperson Williams attached to counsel’s response also confirmed that WCRD “was not created pursuant to any state or local statutes.”  In a supplemental response, counsel further clarified that WCRD was not created “pursuant to any city ordinance, resolution, other legislat[ive] act or executive order.”  

However, the Board “currently consists of four members appointed by the Warren County Judge Executive and three members appointed by the [WCRD].”  Under KRS 61.805(2)(f), this fact is dispositive on the threshold question of whether WCRD is a “public agency” for purposes of the Open Meetings Act regardless of whether a member appointed by the Judge Executive resigned after the meetings in dispute and “has yet to be replaced.”  Although every other subsection of KRS 61.805(2) is facially inapplicable, KRS 61.805(2)(f) defines the term “public agency” as “[a]ny entity when the majority of its governing body is appointed by a ‘public agency’ as defined in paragraphs (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a ‘public agency,’ a state or local officer, or any combination thereof.”  See 03-OMD-089; 11-OMD-060; 13-OMD-037; compare 02-OMD-087 (only four of the eight members of the purported agency’s board were appointed by a public agency which did not constitute a majority).  The Warren County Judge Executive, a local officer, appointed four members, a majority, of the agency’s governing body, the Board. Thus, a quorum of the Board was present, and a “meeting” occurred within the meaning of KRS 61.805(1), when four or more of the members gathered for the purpose of discussing public business.  11-OMD-060, p. 4.  Because the WCRD is, by definition, a “public agency” within the meaning of KRS 61.805(2), it was required to comply with procedural and substantive provisions of the Act, including KRS 61.810(1), 61.815(1), and 61.823(3) and (4).

This office is first compelled to note that the Board failed to provide any written response to either of the complaints at issue. Pursuant to KRS 61.846(1), 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. . . .”  In construing KRS 61.846(1), this office has consistently recognized that it “does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period.”  03-OMD-116, p. 2; 10-OMD-171. As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings Act, “[t]he language of the statute directing agency action is exact.”  Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029. Simply put, KRS 61.846(1) requires a public agency to issue a written response within three business days of receiving a complaint and the Board violated the Open Meetings Act in failing to comply. Id. 97-OMD-43; 11-OMD-114.

        On appeal the Board addressed the specific allegations made by referencing the Bylaws, which provide “that notice of the monthly meeting will be posted in a conspicuous place at [WCRD] Headquarters no less than seven days prior to the[ ] meeting. Further, all active members will be given three (3) days’ notice of a special meeting.”  The Board also quoted the language of KRS 61.810(1)(f), acknowledging that it “went into private and special session to discuss private personnel issues. [The Board] then notified [Mr. Tucker] of his right to a private hearing. [Mr. Tucker] then requested that the issue of his employment be heard in public session.”  Counsel observed that Mr. Tucker was provided with a hearing on April 16, 2015, and the Board was “well within their rights to conduct a private session as they were discussing sensitive personnel matters.”  The minutes of the Board’s March 25, 2015, special meeting reflect that a motion was made to “go into closed session to discuss [a] personnel issue.”  Upon returning to open session, the Board voted to accept Mr. Tucker’s “resignation from the paid administrative position”⁶ and to suspend him for 30 days from the Chief position. The minutes of the Board’s March 26, 2015, meeting indicate that “[a]ll members waived written formal notice to attend tonight’s meeting.”  In addition, the Board voted to “terminate” Mr. Tucker from both positions “and have him removed from the premises.”

The fundamental mandate of the Act, codified at KRS 61.810(1), provides that “[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]”  Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of a public agency at which either public business is discussed or action is taken.⁷  KRS 61.820 provides that all meetings of all public agencies, “and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public.”  It further mandates that all public agencies “provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency.”  The term “meeting” is broadly defined at KRS 61.805(1) as “all gatherings of every kind . . . regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting.”  Thus, all gatherings of a quorum of the Board at which it discussed public business⁸ or took action, such as those held on both March 25 and 26, were meetings of a public agency subject to provisions of the Act.              

        In construing KRS 61.820, and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized that under the Open Meetings Act only two kinds of meeting exist. 92-OMD-1840, p. 3. Regular meetings are governed by KRS 61.820 and special meetings are governed by KRS 61.823.  “If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed.”  Id. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997)(citation omitted). Specifically, KRS 61.823(1) provides that “[e]xcept as provided in subsection (5) of this subsection [which is inapplicable], special meetings shall be held in accordance with the provisions of subsections (2), (3), and (4) of this section.”  This provision requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency,⁹ and media organizations that have requested notification, at least twenty-four (24) hours before the meeting is to occur. Members of the Board cannot waive this requirement. 14-OMD-240, p. 8, n. 5, citing OAG 82-412. However, this office has recognized that no requirement exists for a public agency to “provide individual notice of its regular or special meetings, or to persons affected by the actions to be taken at those meetings, or persons with a particular interest in the subject of the meetings.”  98-OMD-125, p. 5. The notice that is required may be “delivered personally, transmitted by facsimile machine, or mailed. . .,” or sent via electronic mail per KRS 61.823(4)(b).

        In addition, the Act requires a public agency to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting.  “Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.”  KRS 61.823(3). 01-OMD-175; 14-OMD-043. A public agency must comply with all of these requirements. See 10-OMD-168. Insofar as the Board failed to comply with all notice requirements for special meetings codified at KRS 61.823 prior to each of the meetings in dispute, the Board violated the Act.  Likewise, the record on appeal reflects no attempt by the Board to comply with KRS 61.815(1) prior to entering into closed session to discuss the possible dismissal of Mr. Tucker.

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 the general rule codified at KRS 61.800, which are codified at KRS 61.810(1)(a)-(m). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1), pursuant to which a public agency is required to satisfy the following requirements before conducting closed sessions authorized under KRS 61.810: (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.

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.”  Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997)(citation omitted). Consequently, “the courts of the Commonwealth [and this office] 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 regarding compliance with KRS 61.815(1) are consistent with Floyd County Board of Education, above. Rejecting the Board’s argument that it had substantially complied with requirements for conducting a closed session, the Ratliff court reasoned 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[.]”  Id. at 924. Regardless of whether discussion(s) was actually restricted to a subject permissible under KRS 61.810(1)(f), any discussions between the Board members “concerning matters not identified in the open meeting with proper notice [were] a violation of the Open Meetings Act and constitute[d] illegal conduct. Id.

KRS 61.810(1)(f) in particular authorizes public agencies to hold a closed session only for “[d]iscussions or hearings which might lead to 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.”  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. . . .”  OAG 83-415, p. 2. A public agency complies with the requirements of KRS 61.815(1)(a) and 61.810(1)(f) by announcing, during 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 Board did here.¹⁰  12-OMD-102.  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.  

By failing to comply with KRS 61.815(1)(a), in addition to 61.823(3) and (4), and in failing to issue any written response to Mr. Tucker’s complaints per KRS 61.846(1), the Board violated the Open Meetings Act.  Either party may appeal this decision by initiating action in the appropriate circuit court under 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 Conway        

                                                Attorney General

                                                Michelle D. Harrison

                                                Assistant Attorney General

#281, 282, and 283

Distributed to:

Andy Tucker

Deborah Williams

David F. Broderick