16-OMD-109
June 6, 2016
In re: Appalachian News Express/Pike County Fiscal Court
Summary: The Pike County Fiscal Court violated the Open Meetings Act in posting an insufficiently specific special meeting agenda and in discussing multiple potential layoffs in a closed session under the individual personnel discussions exemption.
Open Meetings Decision
The questions presented in this appeal are whether the Pike County Fiscal Court (“Fiscal Court”) violated the Open Meetings Act in posting an insufficiently specific special meeting agenda and discussing multiple potential layoffs in a closed session under the individual personnel discussions exemption. We find that the Fiscal Court violated the Open Meetings Act in posting an insufficiently specific special meeting agenda and in discussing multiple potential layoffs in a closed session under the individual personnel discussions exemption.
The Appalachian News-Express (“News-Express”) submitted a complaint under KRS 61.846(1) to Pike County Judge/Executive Bill Deskins on May 10, 2016, concerning a special meeting of the Pike County Fiscal Court on May 5, 2015. The News-Express alleged five related violations of the Open Meetings Act: 1) the notice of the special meeting included no agenda other than the phrase “work session”; 2) the Fiscal Court members were provided a different agenda that included specific items of discussion in connection with the county’s 2016-2017 budget; 3) the Fiscal Court voted to go into closed session allegedly to discuss personnel matters, although that was not on the agenda; 4) the Fiscal Court actually discussed budget matters under the guise of discussing personnel matters; 5) the Fiscal Court was not discussing the appointment, discipline, or dismissal of an individual employee under KRS 61.810(1)(f). The News-Express requested as remedies all records reviewed by the Fiscal Court in the closed meeting, any minutes or recordings of the closed meeting, a public apology, and a commitment to abide by the Open Meetings Act in the future.
The Fiscal Court responded on May 16, 2016, addressing each allegation of the complaint in turn. First, the Fiscal Court attached the agenda for the special meeting, which stated, “WORK SESSION,” and below that, “Discussion of the 2016-2017 Pike County Budget.” Second, the Fiscal Court stated that “the second agenda was simply an outline to assist the Judge and the other members of the court to have a budget discussion in an orderly fashion.” Third, the Fiscal Court stated that “specific personnel matters discussed by the Court in the executive session were only those specific layoffs of named employees related to balancing the budget. Other general budget matters were not discussed.” Fourth, the Fiscal Court stated that “specific personnel layoffs are germaine [sic] to budget discussions which was the sole purpose of this special meeting.” Fifth, the Fiscal Court stated that “your fifth allegation is redundant to your 3rd and 4th allegations.” In response to the News-Express’ requests for relief, the Fiscal Court stated that no records were reviewed by the Court during the executive session, no minutes or recordings were made of the executive session, no public apology is necessary because the Fiscal Court does not admit to any violation of the Open Meetings Act, and the Fiscal Court intends to continue to abide by the Open Meetings Act. The Fiscal Court also attached what appears to be the more detailed agenda provided to the Fiscal Court members, which listed an opening prayer, a treasurer’s report, consideration of each magistrate’s recommendations, an item stating, “if desired, we will have Executive Session – KRS 61.810 – discussion of specific personnel,” and a closing statement. At the bottom, it stated, “if needed, schedule next WORK SESSION.”
The News-Express initiated this appeal on May 19, 2016. First, it argued that “special meeting agendas must ‘give fair notice of the particular topics to be discussed or acted upon,’” and that the Fiscal Court “misled the public by providing a very vague agenda while, at the same time providing a specific agenda to its members.” Second, it argued that “a special meeting agenda that lists budget discussions as its topic does not permit an agency to discuss personnel matters.” Third, it argued that “the personnel exception cannot be used to conduct secret discussions of reorganization plans or of the termination of multiple employees due to budget cuts.”
The Fiscal Court responded to the appeal on May 26, 2016. Concerning the agenda, it stated that “at that meeting there was only a discussion of the budget. . . . That discussion by necessity involved discussion of specific personnel dismissals, i.e., layoffs required in order to achieve a balanced budget.” Concerning the closed session, it stated that “the News-Express’s allegation that ‘general personnel matters were discussed’ is entirely that, an allegation. Only individual employees who were in fact facing ‘dismissal’ were discussed.”
Regarding the special meeting agenda, KRS 61.823(3) provides that “the notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.” An agenda for a special meeting “contemplates sufficient specificity in the description of the items to be discussed to insure fair notice to the public. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as ‘old business,’ ‘new business,’ ‘open to floor,’ and ‘open to council.’” 01-OMD-175. A mere listing of discussion “of the budget” is insufficiently specific to give the public fair notice of discussions of personnel matters and potential layoffs. Accordingly, in listing only discussion “of the budget” in its special meeting notice, while discussing general personnel matters and potential layoffs in the meeting, the Fiscal Court violated the Open Meetings Act.1
Regarding the closed session, KRS 61.810(1)(f) allows for closed sessions concerning “discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.” KRS 61.800 provides that “the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.” “The personnel exemption to the Open Meetings Act does not allow a general discussion concerning a . . . reorganization plan when it involves multiple employees.” Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997). See also Jefferson Cnty. Bd. of Ed. v. Courier-Journal, 551 S.W.2d 25, 28 (Ky. Ct. App. 1977) (discussion of terminations of multiple employees was a “general personnel matter and accordingly, was not the proper subject of a closed session”); 12-OMD-093 (“Discussions of budgetary matters are not equivalent to discussions of personnel matters that might lead to the appointment, discipline, or dismissal of an employee, member, or student.”). Discussions of multiple potential layoffs, rather than a termination of a particular individual, are discussions of general personnel matters, and therefore not exempted under KRS 61.810(1)(f). Accordingly, in invoking the individual personnel discussion exemption of KRS 61.810(1)(f) to justify a general discussion of potential layoffs, the Fiscal Court violated 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.
Andy Beshear
Attorney General
Matt James
Assistant Attorney General
#221
Distributed to:
Russ Cassady
William M. Deskins
John Doug Hays
Howard Keith Hall
[1] Having found that the agenda in the notice was insufficiently specific, we decline to address whether the provision of a second, more detailed outline or agenda to the board members constitutes an independent violation of the Open Meetings Act.