Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Spencer County Fiscal Court violated the Open Meetings Act in discussing employee discipline in closed session without announcing in open session the nature of the business and the statute authorizing the closed session, and in taking final action in closed session. We find that the Fiscal Court violated the Open Meetings Act in discussing employee discipline in closed session without announcing in open session the nature of the business and the statute authorizing the closed session, and in taking final action in closed session.
Lawrence Trageser submitted a complaint to the Fiscal Court on September 1, 2017. Trageser alleged that on August 21, 2017, during a regular meeting of the Fiscal Court, that the Fiscal Court went into executive session to discuss discipline of an employee concerning timesheet violations, without invoking the statute authorizing the closed session, and took final action concerning employee discipline without returning into open session to vote. 1 On September 8, 2017, the Fiscal Court responded, stating that it "came out of executive session and forgot the motion regarding the disciplinary action of the employee. I have advised the Court to be more careful in remembering every individual issue, discussed in executive session, so that the appropriate motion(s) are made afterward."
Trageser initiated this appeal on September 13, 2017, in which he reiterated his allegations, and attached the agenda from the meeting 2 and an article from the Spencer Magnet discussing the disciplinary action taken against the employee. The Fiscal Court responded to the appeal on September 21, 2017, stating that "the Court discussed various issues in executive session but neglected to announce the disciplinary action against the employee in question, in open court, after the decision was made in executive session. I have advised them about making sure we do not forget something, after we leave executive session . . . ."
KRS 61.810(1)(f) allows closed sessions for "discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee." KRS 61.815(1) provides the requirements for conducting closed sessions:
(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;
. . . .
(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.
It is not disputed that notice of the potential employee discipline was not noted on the agenda or announced at the meeting, and the Fiscal Court did not return to open session to take final action against the employee.
The fact that the employee discipline was not placed in the agenda for the closed session in a regular meeting is not itself a violation, as "KRS 61.820 does not require public agencies to prepare agendas for regular meetings." 11-OMD-148 n. 2. "Placement of the notice of closed session in the agenda does not count as notice 'in regular open session' for the purposes of KRS 61.815(1)(a); the notice must be announced in the meeting itself." 15-OMD-057. What is required for a closed session is announcement during the meeting of the nature of the business, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. It is not disputed that the Fiscal Court discussed employee discipline in closed session without announcing in open session the nature of the business or the specific provision authorizing it. Accordingly, in discussing employee discipline in closed session without announcing in open session the nature of the business and the specific provision of KRS 61.810 authorizing the closed session, the Fiscal Court violated the Open Meetings Act. The Fiscal Court also does not dispute that it took final action regarding employee discipline in closed session. In taking final action in closed session, 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Trageser requested as relief that the Fiscal Court "shall cease and desist in not correctly identifying what topics are to be discussed in executive session both on the written agenda and orally expressed to the public," that "each magistrate and county judge shall apologize individually . . . to the public for their illegal acts and publish an apology stating the same in the Spencer Magnet newspaper," and that "the magistrates and county judge shall also provide an explanation and an account of their illegal actions to the taxpayers of Spencer County."
2 The agenda for the meeting listed, under new business, executive session under "KRS 61.810(1)(b) for 'discussion on the future acquisition or sale of real property by a public agency," and "KRS 61.810(1)(c) for 'discussions of proposed or pending litigation against or on behalf of the public agency.'"