Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government ("LFUCG") Ethics Commission ("Commission") violated the Open Meetings Act by announcing its decision to hold a closed session during its August 6 , 2019, special meeting per KRS 61.810(1)(f) for the purpose of conducting a Preliminary Inquiry regarding Tanyqua Oliver's June 2019 complaints, identified as CO-2019-01 and CO-2019-2, alleging official misconduct by three police officers, the Chief of Police, and the Commonwealth's Attorney. For the reasons stated herein, this office finds the Commission did not violate the Open Meetings Act.
Ms. Oliver directed her written complaint to the attention of "The Presiding Officer of" the LFUCG Council Clerk's Office, Citizens' Advocate, and Ethics Commission, a copy of which she delivered on August 2 , 2019, to "the LFUCG front desk" for the Mayor and hand-delivered to the LFUCG Department of Law. She first made several allegations regarding the Commission's failure to comply with sections of the LFUGC Code of Ordinances relative to canceled special meetings that were originally scheduled for June 24, 2019, and July 12, 2019. Next, she noted that a "tentative ethics hearing" was then scheduled for August 6, 2019, but it has "still yet to confirm its existence and distribute any and all documents given to either party to the public but rather have instructed me that everything is deemed private which directly violates" the LFUCG Code of Ordinances, particularly "Section 25(23)(3b)." Amber Dietz, LFUCG Citizens' Advocate, ultimately notified Ms. Oliver via e-mail that in maintaining the confidentiality of the Preliminary Inquiry, the Commission was relying upon KRS 61.810(1)(f). To remedy the alleged violations of the Act, Ms. Oliver asked the Commission to "fix[] and revert[] every violation they have committed," issue a "public apology for this traumatic experience, distribute all documents I've received to the public upon request, . . . and follow state laws as well as their own ordinances throughout the entirety of the upcoming proceedings." Only the propriety of the Commission's reliance on KRS 61.810(1)(f) as the basis for conducting its Preliminary Inquiry during a closed session, and the question of whether its August 7, 2019, response was timely under KRS 61.846(1), are both ripe for administrative review under KRS 61.846(2) and justiciable in this forum.
On September 17, 2019, Ms. Oliver initiated her appeal by providing the necessary documentation per KRS 61.846(2). 1The additional claims that Ms. Oliver made in her September 17 appeal, relating to compliance with KRS 61.815(1)(d), 2the exclusion of her advocate from the closed session, 3and the discussion of issues beyond the narrow scope of KRS 61.810(1)(f), 4were not raised in her original complaint; nor could she have raised allegations regarding the Commission's August 6 special meeting in her August 2 complaint. Accordingly, those issues are not ripe for administrative review and this office is precluded from resolving those issues here. See 06-OMD-211, p. 3, n. 4; 12-OMD-142. Likewise, this office 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 the context of an Open Meetings Appeal." 16-OMD-030, p. 3 (declining to make "any finding relative to compliance with Sections 17 and 18 of the Spencer County Ethics Code or lack thereof by the Ethics Commission"); 02-OMD-22; 10-OMD-120; 12-OMD-080.
Pursuant to KRS 61.846(2), 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." See 18-OMD-060. In sum, "this office cannot resolve factual disputes in the context of an Open Meetings Appeal nor does it conduct hearings, gather evidence, interview witnesses, etc . in resolving disputes arising under the Open Meetings Act; only the courts are vested with authority to perform such functions." See 12-OMD-080 (many tangential or underlying issues and concerns are not justiciable in this forum). 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; 15-OMD-142. Based upon the undisputed facts presented here, this office concludes the Commission issued a timely written response to Ms. Oliver's August 2 complaint per KRS 61.846(1) and, consistent with 01-OMD-18, also finds that it did not violate the Open Meetings Act by conducting its Preliminary Inquiry regarding Ms. Oliver's complaints during a closed session.
By letter dated August 7, 2019, Managing Attorney Glenda Humphrey George responded to Ms. Oliver's August 2, 2019, complaint on behalf of the Commission. She first quoted Section 25-23(3) of the LFUCG "Ethics Act," pursuant to which "[a]ll proceedings and records relating to a preliminary inquiry conducted by the ethics commission shall be confidential until a final determination is made. . .." Authority for Section 25-23 of the Ethics Act is found in KRS 61.810(1)(f), which authorizes "[d]iscussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student" to be held in a properly noticed closed session. Ms. Humphrey asserted that 01-OMD-18, holding the Richmond Board of Ethics did not violate the Act in conducting a Preliminary Inquiry during a closed session, was directly on point; she provided Ms. Oliver with a copy in support of the Commission's position. She further noted that Ms. Oliver filed a complaint against three police officers, the Chief of Police, and the Commonwealth's Attorney, alleging a violation of Section 25-5.2 of the Ethics Act -- Official Misconduct. "In situations where a complaint is filed against an officer or employee of the [LFUCG] for a possible violation of the Ethics Act," she stated, "there may be times when evidence presented will lead the Ethics Commission to conclude that discipline or dismissal is warranted. KRS 61.810(1)(f) allows a preliminary inquiry to be held in closed session unless the officer or employee requests that it be held in open session." In the case of Ms. Oliver's complaint(s), "not all the parties agreed to waive confidentiality." Based upon the following, this office finds the Commission's response complied with relevant provisions of the Open Meetings Act.
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. . . ." This office has consistently recognized that KRS 61.846(1) "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. As with KRS 61.880(1), the parallel provision of the Open Records 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.
On appeal, Attorney Evan P. Thompson supplemented the Commission's response. He first confirmed that, as Ms. Oliver noted, she delivered her written complaint to LFUCG's Department of Law (and the Mayor) on (Friday) August 2, 2019, and Ms. George sent a written response on behalf of the Commission via U.S. Mail and e-mail on August 7, 2019. In asserting the Commission's response was untimely on August 7 (initial attempt to appeal), Ms. Oliver failed to allow time for mail delivery. See 04-OMD-199 (applying KRS 446.030(1), which provides the first business day following receipt is the first day for the purpose of determining timeliness, in finding that response to complaint on fourth business day was untimely under KRS 61.846(1), and implicitly recognizing that a response issued on third business day after complaint was received would have been timely); 96-ORD-207; 11-OMD-136; 13-OMD-186. The Commission's written response was "timely within the meaning of [KRS 61.846(1)] as long as it was mailed on August[]7, the third business day after it was received. The complaint is without merit from a procedural standpoint." 13-OMD-142, pp. 2-3. Existing legal authority, namely 01-OMD-18, also validates the Commission's reliance on KRS 61.810(1)(f) as the basis for conducting its Preliminary Inquiry regarding Ms. Oliver's complaints in a closed session. See 10-OMD-017.
In responding to Ms. Oliver's appeal, Mr. Thompson explained that based on the results of a Preliminary Inquiry, "multiple different outcomes could occur that may lead to the discipline or dismissal of an employee or officer." For instance, "as a direct result of the testimony and discussions within" the subject Preliminary Inquiry, the Commission "could have filed charges with the Urban County Council to discipline the police officers (Section 25-23(4)); referred the matter to Internal Affairs within the Division of Police (Section 25-22(4)); or referred the issue relating to the Police Chief to the Mayor (same)." In those cases not involving police officers (or firefighters), the Commission is also vested with authority to "schedule a full hearing where penalties, including a recommendation to the Mayor or the Civil Service Commission that 'removal, training, or remediation' of an employee is necessary, would be considered if a violation of the Ethics Act was found. See Section 25-24; Section 25-30." In further support of its position that invocation of KRS 61.810(1)(f) was proper, the Commission noted that Section XIX of Richmond Ordinance No. 94-50, the relevant Ordinance in 01-OMD-18, was "a replica of Lexington's Ethics Act." 5The Commission provided this office with a copy of the relevant ordinances on appeal.
In 01-OMD-18 (copy enclosed), the Richmond Board of Ethics conducted a "preliminary inquiry" under authority of KRS 61.810(1)(f), authorizing closed session "discussion or hearing which might lead to the appointment, discipline, or dismissal of an individual employee, member or student . . . ." See 05-OMD-017; 10-OMD-017. Significantly, the Attorney General reasoned:
Since the statute uses the words "discussions or hearings" and also uses the term "might lead to," we believe that a closed session can be held on a personnel matter without formal charges being made against the person who is the subject of the session. Such a discussion could be entirely preliminary to deciding either to reject the idea of disciplinary or dismissal action, or could be preliminary to a decision to make formal charges and hold another hearing.
01-OMD-18, p. 6 (citing OAG 81-413, p. 2); OAG 81-135; OAG 84-46. This office concluded:
The Board of Ethics acts in a quasi-adjudicative capacity in reviewing allegations of unethical conduct, and its jurisdiction extends both by statute and ordinance to elected officials and employees of the city, including the Mayor. Acting in this capacity, the Board may discuss in closed session whether the allegations state a minimal factual basis to constitute a violation and a complaint should issue. Clearly, such discussions might lead to the imposition of discipline on the Mayor regardless of whether she is characterized as a member or employee. Any other interpretation of the exception elevates form over substance.
01-OMD-18, p. 7; 12-OMD-142. This reasoning is equally controlling here.
Based upon the foregoing, this office finds the Commission issued a timely written response to Ms. Oliver's August 2 complaint on August 7 per KRS 61.846(1). The Commission's reliance on KRS 61.810(1)(f) as the legal basis for conducting its August 6 Preliminary Inquiry during a closed session was entirely proper. Ms. Oliver's additional concerns do not fall within our purview under KRS 61.846(2).
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 Ms. Oliver first attempted to file her appeal by letter dated August 7, 2019, three days following the Commission's receipt of her August 2 request, excluding weekends and holidays. By letter to Ms. Oliver on August 14, 2019, this office notified her that her appeal was premature and this office thus lacked jurisdiction, citing KRS 61.846(1). See 40 KAR 1:030 Section 1. Following receipt of her subsequent correspondence, this office further explained the process to Ms. Oliver by letter dated August 23, 2019. She enclosed a copy of the Commission's timely August 7, 2019, response with her September 17, 2019, appeal per KRS 61.846(2).
2 On appeal, the Commission stated it "acted lawfully when going into closed session after first explaining, in the open meeting, how KRS 61.878(1)(f) applied[] to the hearing of Ms. Oliver's ethics complaints (CO-2019-1 and CO-2019-2), and then, also in the open meeting, making a motion to go into closed session, which ultimately passed, fulfilling the requirements of KRS 61.815." KRS 61.815(1), in relevant part, requires a public agency to satisfy the following requirements before holding a closed session: "(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[.]" This office makes no finding relative to compliance with KRS 61.815 because, as noted, Ms. Oliver did not raise this argument until she filed the instant appeal. See Floyd Cty. Bd. of Educ. v. Ratliff , 955 S.W.2d 921, 923-24 (Ky. 1997); 15-OMD-142; 17-OMD-266.
3 The relevant analysis of this issue can be found in 13-OMD-006.
4 See 18-OMD-094 for the relevant analysis.
5 Mr. Thompson further stated the Commission also complied with all of the notice requirements codified at KRS 61.815(1) prior to entering its closed session per KRS 61.810(1)(f) on August 6. Because Ms. Oliver did not, and could not, have raised this issue regarding the actions of the Commission during its August 6 special meeting in her August 2 complaint, any finding on this issue would be premature. See 12-OMD-142.