15-OMD-150
August 6, 2015
In re: Robert D. Cron/Butler County Fiscal Court
Summary: Although Butler County Fiscal Court violated KRS 61.815(1)(a) by failing to state in open session that it intended to discuss possible discipline of the county road superintendent in closed session, fiscal court did not violate KRS 61.810(1) by discussing that subject in the closed session.
Open Meetings Decision
Robert D. Cron appeals the Butler County Fiscal Court’s denial of his July 13, 2015, open meetings complaint in which he alleged that the fiscal court conducted an unauthorized closed session to discuss extending the two week suspension of the county road superintendent imposed by the county judge/executive. Because KRS 179.060 vests authority to remove the superintendent in the county judge, Mr. Cron complained that the fiscal court improperly discussed the superintendent in a closed session under KRS 61.810(1)(f). He argued:
Judge/Executive David Fields did not ask/request the fiscal court to discipline/fire [the superintendent] . . . . Magistrate Chad Tyree lacked the legal authority to make any motion concerning the [superintendent] and was out of order in this effort. The whole fiscal court lacked legal authority in this action concerning [the superintendent] to go into closed session.
In support, Mr. Cron cited OAG 94-70, construing KRS 179.060 “as amended by implication by KRS 67.710(8),” in which the Office of the Attorney General opined that the judge/executive is authorized to remove a county road superintendent or supervisor “with the approval of the fiscal court.” As a means of remedying the alleged violation, Mr. Cron proposed that the fiscal court “abide by the law OAG 94-70 . . . .”
The fiscal court denied the allegations in Mr. Cron’s complaint in a timely, written response, defending the procedures followed in entering closed session and the matter discussed in closed session. Through counsel, the fiscal court observed:
A motion was made in open session to go into closed session, that motion was duly seconded and passed, a recitation was made pursuant to KRS 61.810 indicating the purpose for the closed session to be the employment, dismissal, or discipline of a county employee. There is no allegation in your [Mr. Cron’s] letter that there was any discussion in the closed session that did not relate to the employment, discharge, or discipline of a county employee. I recognize that your open meetings violation letter raises . . . concerns about the motion to extend the unpaid suspension of [the superintendent] but I am struggling to discern the open meetings violation being alleged.
Mr. Cron subsequently initiated this appeal, asserting:
OAG 94-74 identifies The County Road Supervisor/Foreman as being under the authority of the Judge/Executive EXCLUSIVELY, and not under the authority of the Fiscal Court. My Open Meetings Violation Letter has nothing to do with the motion to extend the unpaid suspension of [the road superintendent] as Mr. Deye suggest. My OMV Letter deals with the FACT that the Fiscal Court lacks the Statutory Authority to even MAKE such a motion, UNLESS THE JUDGE/EXECUTIVE ASK THE COURT TO DO SO. I asked Judge Fields several times if he had asked the Fiscal Court to Fire or discipline [the superintendent], each time he answered NO I DID NOT. . . . [When] the fiscal court (MAGISTRATES) discussed the subject of [the superintendent], WITHOUT STATUTORY AUTHORITY, they violated OAG 94-70. Judge Fields says he did not ask the Court for assistance or support, OK, they go into closed session, when they come out magistrate Tyree takes it upon himself, makes a motion to discipline [the superintendent] for another 2 weeks, did the Fiscal Court discuss [the superintendent], UNSOLICITED, of course they did . . . . Another point of interest is it was Judge Fields that initially placed [the superintendent] on unpaid suspension, NOT THE FISCAL COURT. Tyree led the other Magistrates into an area where they have no Statutory Authority to be, THEN makes a motion concerning Mr. West, further compounding his unsolicited assistance. [Sic.]
Having considered these arguments, we conclude that although the Fiscal Court violated KRS 61.815(1)(a) when it failed to properly frame its motion to enter closed session, the fiscal court did not violate KRS 61.810(1) by discussing an unauthorized subject in closed session.
In a line of open meetings opinions/decisions1 that can be traced to 1997, the Attorney General has recognized that when a public agency invokes KRS 61.810(1)(f) as legal authority for a closed session, it:
must state during the regular and open portion of the meeting the general nature of the business to be discussed and the reason for the closed session. 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 which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.
97-OMD-110, p. 3, cited in and reaffirmed in 11-OMD-114 (determining that agency erred when it identified “personnel matters” as the basis for a closed session). Thus, “a public agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing 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, p. 3 cited in 11-OMD-114. The fiscal court concedes that “a recitation was made pursuant to KRS 61.810 indicating the purpose for the closed session to be the employment, dismissal, or discipline of a county employee.” In all cases, “the Open Meetings Act, in particular KRS 61.815(1)(a), contemplates more than agency recitation of the 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, quoted in 11-OMD-114. In those cases in which the agency relies on KRS 61.810(1)(f), it must identify which particular action, possible appointment, possible discipline, or possible dismissal, it intends to discuss in closed session. The fiscal court’s failure to do so constituted a violation of KRS 61.815(1)(a) read in pari materia with KRS 61.810(1)(f).
At the heart of Mr. Cron’s complaint is his belief that the fiscal court, on motion of a magistrate and not the county judge, could not properly discuss the appointment, discipline, or dismissal of the county road superintendent. He bases his objections on KRS 179.060 as interpreted in OAG 94-70. KRS 179.060 states:
(1) The county judge/executive may remove the county road engineer [superintendent], appointed under KRS 179.020, at any time for incompetency, malfeasance or misfeasance in office upon written charges after a hearing of which ten (10) days' notice shall be given by serving a copy of the charges upon the county engineer [superintendent]. The hearing shall be at the courthouse, in the county seat.
(2) If upon the hearing the charges are sustained, the county judge/executive shall remove the county road engineer [superintendent] and immediately notify him by mail of his removal. The notice shall state specifically the grounds for removal. The record of the proceedings shall be filed in the office of the county clerk.
In OAG 94-70 the Attorney General summarized his position on questions relating to the removal of the county road superintendent as follows:
Since the authority to remove a county road engineer [superintendent] or supervisor rests with the county judge/executive, subject to the approval of the fiscal court, the initiation of charges under KRS 179.060 must be done by, or with the concurrence of, the county judge/executive. An actual removal decision rests with the county judge/executive, subject to the approval of the fiscal court.
This opinion is inapposite for a number of reasons. Neither the statute nor the opinion addresses discipline of the county road superintendent. Had the legislature wished to so severely constrain the fiscal court as to preclude the court’s involvement in disciplinary matters relating to the county road superintendent, it would have declared that “the county judge may discipline or remove the county superintendent. . .” OAG 94-70 does not state that the fiscal court lacks authority to discuss actions taken by the road superintendent that resulted in the imposition of a two week suspension by the county judge.
Moreover, KRS 67.080 empowers the fiscal court with authority to “[i]nvestigate all activities of the county government”2 and to “regulate and control the fiscal affairs of the county.”3 The Butler County Fiscal Court Administrative Code mirrors these statutes at sections 120.3(c) and (g).4 As we understand the facts giving rise to the disciplinary action taken, the road superintendent was pulled over by the police for driving under the influence in a take home vehicle provided to him by the county. OAG 94-70 notwithstanding, fiscal court discussions relating to discipline of the road superintendent are appropriate in the scope of responsible and informed discharge of these statutorily assigned duties.
For these reasons, we find that the Butler County Fiscal Court did not violate the Open Meetings Act when it conducted a closed session discussion concerning discipline of the road superintendent. 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 Conway
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#286
Distributed to:
Robert D. Cron
David Fields
Richard J. Deye
[1] The Attorney General was not assigned the duty to render legally binding decisions resolving open meetings disputes until 1992. KRS 61.846(2). Opinions relating to open meetings issued prior to 1992 do not have the force and effect of law as to the parties to the appeal. KRS 61.846(4)(b).
[2] KRS 67.080(1)(g).
[3] KRS 67.080(1)(c).
[4] Although the code addresses appointment of the “superintendent of roads” by the county judge at Section 640.2, and indicates that he or she “shall be directly responsible to the county judge” it does not address discipline.