Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
The issue presented in this appeal is whether the Louisville-Jefferson County Metro Ethics Commission ("Commission") violated the Open Meetings Act ("Act") when it: deliberated on two separate matters in closed session; deliberated in closed session on a matter when both the complainant and the respondent's attorney were present at the meeting; and moved to go into closed session. For the reasons stated below, we find that the Commission did not violate the Act in deliberating on two separate matters in a single closed session, and did not violate the Act by deliberating in closed session when both the complainant and respondent's attorney were available for the entire meeting. However, we find that the Commission did not comply with the requirements of the Act in its motion to go into closed session.
By correspondence to the Commission dated June 27, 2018, David Fink ("Appellant"), complained that the Commission had violated the Act when it went into closed session at its June 21 meeting. The first alleged error was that KRS 61.810(1)(j) 1 only allows for individual adjudications, but "[t]here were multiple (2) complaints that were discussed in the same closed session. " Appellant also contended that there was no reason that the merits of the complaint should not have been discussed in open session since he, as the complainant, and the "respondent's attorney [were] available on site throughout the entire meeting." Appellant also complained that "there was no reason given at all for any exemption, to establish why the Commission needed to discuss the complaint 18-MC-001 in secret. " Appellant requested the Commission remedy the alleged violations by declaring the vote to dismiss his complaint as void and proceed with further investigation or hold a hearing on the complaint.
Dana Cox Nickles, General Counsel, timely responded to the complaint on behalf of the Commission. Ms. Nickles stated that the Commission is required by its Rules and Regulations 2 to meet to consider complaints filed against "Metro Officers" pursuant to the Metro Ethics Code. 3 She stated that there were two complaints pending review by the Commission on June 21, and that the complainants and counsel for respondents were present for the meeting. A motion was made, pursuant to KRS 61.810(1)(j), to go into closed session; the motion was seconded and the Commission voted unanimously to go into closed session. The complainants and counsel were asked to leave the room. The Commission, in closed session deliberated the two pending complaints and then voted to return to open session. After returning to open session, the Commission voted unanimously to dismiss the complaint, 18-MC-001, filed by Appellant. Ms. Nickles addressed Appellant's complaint that the Commission must meet in open session to consider an ethics complaint, stating that, according to the Commissions' Rules and Regulations, Paragraph 7.4, "All deliberations under this Section will be held confidentially in executive session [,]" and that KRS 61.810(1)(j) permits the Commission, as a quasi-judicial body, to go into closed session regarding individual adjudications. The Commission declined to remedy the alleged violations.
Appellant filed his appeal with this office, reiterating the three issues from his complaint to the Commission. The Commission, through Ms. Nickles, responded to the appeal by stating that it complied with the requirements of KRS 61.815(1), even though it asserted that, as a quasi-judicial body, it is not required to do so pursuant to KRS 61.815(2). The Commission acknowledged that this office has determined that quasi-judicial bodies must comply with the procedural requirements set forth in KRS 61.815(1) before going into closed session. The Commission provided the draft minutes of the June 21 meeting and directed our attention to the motion made for going into closed session:
Pursuant to KRS 61.810(1)(j), the Kentucky Open Meetings Act, the Commission will retire into closed, executive session. Specific justification under the Kentucky Open Meetings Act for this action is that there will be discussions of pending complaints at which only the Ethics Commission members and staff to the Commission be present.
The Commission contends that this motion meets the requirements of KRS 61.815(1), as interpreted by
Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921 (Ky. 1997), by (1) stating the exception allowing the Commission to go into closed session, (2) giving the reason for the closed session, and (3) describing the business to be discussed. The Commission also stated that the agenda for the June 21 meeting was provided to Appellant at the meeting and listed the matters to be discussed in closed session.
Analysis .
Individual Adjudications . Appellant argues that KRS 61.810(1)(j) does not permit the Commission to discuss more than one complaint in closed session. We disagree. KRS 61.810(1)(j) specifically uses the terms "deliberations" and "adjudications[,]" both plural forms of those words rather than singular, in authorizing the exemption. The statute thus explicitly permits multiple deliberations of individual adjudications or appointments in a single closed session.
In interpreting a similar statutory exemption, KRS 61.810(1)(f) 4, allowing agencies to go into closed session, for example, to discuss disciplinary action regarding individual employees, this office has recognized that agencies are not restricted to discussing a single employee during a closed session, so long as the appropriate notice provisions of KRS 61.815(1) 5 are observed.
(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.
. . . These decisions firmly establish that an 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 or employees of the agency, indicating which of these particular actions is contemplated. The agency is not required to identify, by name, the employee or employees who will be discussed, nor is it restricted to a discussion of one individual employee at a time .
00-OMD-113, p. 5 (emphasis added). In an earlier decision of this office, 99-OMD-49, regarding KRS 61.810(1)(f), we stated that an agency was not restricted, in closed session, to discussing a single employee individually or in isolation. "To hold otherwise would place unjustifiable impediments on an agency's ability to effectively and efficiently discuss joint misconduct of public employees which might warrant disciplinary action or dismissal." 99-OMD-49, p. 4. 6
For the reasons stated above, we find that the Commission did not violate the Act by deliberating on two separate matters during a single closed session.
Closed Session When Complainant and Respondent's Representative are Present . Appellant's complaint to the Commission argued that there was no reason that the merits of the complaint should not have been discussed in open session as the complainant and the respondent's attorney were present for the entire meeting, though excluded from the closed session. We disagree.
KRS 61.810(1) states that "All 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, except for the following" . . . "(j) Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present . . . [.]" The statute begins with the proposition that public agency meetings are open to the public, but then the exceptions to that general proposition follow. The closed sessions of the Commission are permitted under KRS 61.810(1)(j), and that exception expressly prohibits the presence of "any other individual not a member of the agency's governing body or staff" in the closed session. We find no violation of the Open Meetings Act in the Commission going into closed session to deliberate on ethics complaints regardless of whether the interested parties, or representatives thereof, were present at the meeting.
Compliance with KRS 61.815(1) . Appellant argues that "there was no specific reason given at all for any exemption, to establish why the Commission needed to discuss the complaint 18-MC-001 in secret. " KRS 61.815(1)(a) requires that:
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.
The express purpose of this, as well as the other provisions of the Open Meetings Act, "is to maximize notice of public meetings and actions [and t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." Ratliff, 955 S.W.2d at 922. With specific reference to KRS 61.815, the Supreme Court in Ratliff declared that prior to going into closed session, "the public agency must state the specific exception contained in the statute which it relied upon," and give " specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting ." Id. at 924 (emphasis added).
The Commission argues that it complied with KRS 61.815(1) as interpreted by Ratliff by stating the exception allowing the Commission to go into closed session, giving the reason for the closed session, and describing the business to be discussed. The Commission also stated that the agenda for the June 21 meeting was provided to Appellant at the meeting and it includes the matters to be discussed in closed session.
Under the record of this appeal, we find that the Commission violated KRS 61.815(1). The Commission cited the specific statute, KRS 61.810(1)(j), permitting it to go into closed session, but the stated reason for the closed session ("to discuss pending complaints") does not give " specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting. " We recognize that the agenda for the meeting included at Item VIII, "Complaints, Preliminary Investigations, and Litigation," and listed:
a. 18-MC-001; Response; Motion to Intervene; Motion to Recuse; and Supporting Memorandum
b. 18-MC-002; Response
However, the motion to go into closed session did not reference these subjects, thus failing to give the notice required by the Supreme Court in Ratliff . The Commission should have specifically referenced each of the complaints in the motion to go into closed session, either by mentioning them separately, or by referring to the agenda item with sufficient clarity that the public was fully informed on the matters to be deliberated. For these reasons, we find that the Commission violated KRS 61.815(1)(a) when it went into closed session at the June 21 meeting.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 KRS 61.810(1) states: "All 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, except for the following: . . . ((j) Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment[.]"
2 The Rules and Regulations of the Louisville/Jefferson County Metro Commission are at: https://louisvilleky.gov/sites/default/files/human_resources/ethics_com… (last visited July 15, 2018).
3 The Louisville/Jefferson County Metro "Ethics Code" may be found at: https://louisvilleky.gov/sites/default/files/human_resources/ethics_com… (Last visited July 15, 2018).
4 KRS 61.810(1)(f) states, in pertinent part: "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."
5 KRS 61.815 states, in pertinent part: (1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
6 Although 99-OMD-49 did not prohibit the discussion of more than a single employee in closed session, it did warn against discussion of general personnel matters in closed session: "This decision should not be interpreted as a retreat from the long-standing proposition that an agency cannot go into closed session to discuss general personnel matters."99-OMD-49, p. 4. A public agency may go into closed session under the Open Meetings Act to discuss the termination or other personnel action related to individuals, but not to discuss the elimination of a program that could thereby result in the termination of individuals. See 18-OMD-091.