Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether Eastwood Fire Protection District ("EFPD"), Worthington Fire Protection District ("WFPD"), Harrods Creek Fire Protection District ("HFPD"), and Anchorage Middletown Fire & Emergency Medical Services ("AMFEMS") (collectively, "Fire Districts") violated the Open Meetings Act at certain meetings during 2018 and 2019. For the reasons that follow, we find that EFPD, WFPD, and HFPD violated the Act, but AMFEMS did not violate the Act.
On October 25, 2019, attorney Douglas L. McSwain sent a written complaint to Chadwick A. McTighe, an attorney representing the Fire Districts, on behalf of their respective presiding officers. In the complaint, he argued that based on his review of their meeting minutes, EFPD, WFPD, and HFPD had all violated the Open Meetings Act by going "into executive session without explanation." The meetings at issue were: the EFPD board meetings on May 10, 2018, and February 14, 2019; the WFPD board meeting on May 16, 2018; and the HFPD board meetings on May 21, July 16, August 20, and September 17, 2018. 1
Mr. McSwain alleged that the closed sessions violated KRS 61.815(1), which provides as follows:
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:
(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.
As a remedy for the alleged violations, he asked that the agencies provide "any further information that can confirm that the Fire Districts did in fact observe appropriate Open Meetings Act law and procedures, or provide any justification, sworn statements, or documents relating to the contents of the executive sessions," and agree not to commit further violations of the Act.
On October 30, 2019, Mr. McTighe responded on behalf of the Fire Districts, denying any violation and raising no objection to serving as the agent for receipt of the complaint. He stated that "[e]ach Fire District followed a policy of conducting any closed sessions in full compliance with the Act," giving "notice during the open meeting of the nature of matters to be discussed in closed session." Furthermore, he asserted that closed sessions would be entered upon motion and a majority vote, "no final action would be taken" in closed session, and "[n]othing would be discussed in closed session beyond matters identified in the aforementioned notice." He further provided more specific statements as to the meetings at issue.
Mr. McSwain initiated this appeal on November 1, 2019. In response to the appeal, the Fire Districts asserted that all of the closed sessions at issue were authorized by KRS 61.810(1)(f) and that in each case the board gave notice of that provision, along with the general nature of the business and the reason for the closed session. KRS 61.810(1)(f) permits closed sessions for the following purpose:
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[.]
We examine the meetings separately as to the propriety of the closed sessions, to the extent that the Fire Districts have provided specific information.
EFPD meeting May 10, 2018
The pertinent portion of the minutes for this meeting states as follows:
Charity Bird made a motion to go into Executive Session. Seconded by DeWayne McCray: Approved.
The Board of Trustees returned from Executive Session with no action taken.
DeWayne McCray made a motion for Chief Arnold to extend the Company Commander eligibility list for (1) year -- June 2019. Seconded by Charity Bird: Approved.
In its response to the complaint, EFPD confirmed that extending the Company Commander eligibility list was the topic discussed in closed session.
Exceptions to the Open Meetings Act under KRS 61.810 must be "strictly construed." KRS 61.800. In particular, "[a] public agency's authority to go into a closed session relative to personnel matters is severely restricted. General personnel matters cannot be discussed in a closed session." 11-OMD-115. Rather, KRS 61.810(1)(f) permits only discussions that "might lead to the appointment, discipline, or dismissal of an individual." In so limiting its application, the General Assembly "specifically intended to close discussions only of these three subjects due to the potential for reputational damage . Closed discussions of other matters are expressly precluded." OAG 83-415 (emphasis added). Accordingly, "matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be discussed in closed session" under KRS 61.810(1)(f). 00-OMD-86.
"The potential for reputational damage [in the context of appointments] exists where several individuals apply for employment, and some must be eliminated from consideration on the basis of their qualifications." 02-OMD-21. Here, as in 11-OMD-115, "[t]he record before us is devoid of evidence that the [May 10, 2018] closed session exposed [any individual] to potential or actual reputational damage." Thus, we conclude that the decision to extend the eligibility list for an additional year was a general personnel matter, only remotely or tangentially related to the appointment of any individual employee. Accordingly, EFPD violated the Open Meetings Act by holding a closed session for this purpose.
EFPD meeting February 14, 2019
The relevant portion of the minutes from this meeting states as follows:
Board approval to except [ sic ] Major Justin Roberts letter to be reassigned to a fire company at the rank of caption [ sic ]. Chairman Melinda Sunderland requested motion to go into executive session, Denise Wood made motion, and Joey Cooper seconded. Approved unanimously. Motion to return out of executive session with no action taken by Dewayne McCray, Seconded by Joey Cooper. Approved unanimously. Denise Wood Made [ sic ] Motion to accept Major Roberts letter, and reassign to a company as the rank of Captain, Seconded by Charity Bird. Approved unanimously.
In its response to the complaint, EFPD clarified that this closed session was for "consideration of a voluntary request by one Major to be reassigned to a fire company at the rank of Captain."
The potential for reputational damage in the context of discipline or dismissal exists "where allegations of misconduct have been leveled against current employees, but are not yet substantiated." 11-OMD-115. Here, however, the board was considering a request for a voluntary reduction in rank. Nothing in the record indicates any allegations of misconduct or any other source of potential reputational damage that could result from the board's discussion. Nor has EFPD given evidence of the type of potential reputational damage that pertains to an appointment, as nothing in the record suggests that Major Roberts was competing with others for this assignment. As this voluntary reassignment was not a proper subject for a closed session under KRS 61.810(1)(f), we find that EFPD violated the Open Meetings Act.
WFPD meeting May 16, 2018
The relevant portion of the minutes for this meeting merely stated: "Board went into executive session at 8:05 pm and came out with vote to adjourn meeting at 8:40 pm." In its response to the complaint, WFPD stated that "the Board entered into closed session pursuant to KRS 61.810(1)(f) to discuss possible disciplinary action against an employee. . .. There was no action taken during the closed session (as indicated by the absence of any final action or vote in the minutes." WFPD "acknowledge[d] that the minutes do not reflect a vote to enter the closed session. Although we believe that a vote would have occurred with respect to this closed session, we cannot confirm this from the minutes."
Although WFPD asserts that it gave notice of the subsection and the purpose for the closed session, we note that the board was also required to announce the specific type of action it was contemplating in 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," namely "either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons." 97-OMD-110 (emphasis added). If WFPD did not give this degree of notice as to the general nature of the business to be discussed, it violated KRS 61.815(1)(a).
WFPD admits that its minutes do not reflect whether a vote occurred to authorize this closed session. Obviously, if the closed session was not authorized by a motion and majority vote, it was conducted in violation of KRS 61.815(1)(b). Furthermore, KRS 61.835 requires public agencies to take minutes "setting forth an accurate record of votes and actions at [their] meetings." The minutes must, at a minimum, "record formal motions made in a meeting and the vote of the members on the motion." 05-ORD-209 (quoting OAG 81-387). Therefore, if WFPD did in fact vote to go into a closed session upon motion properly made, it violated 61.835 by failing to record that vote in its minutes. 07-OMD-059.
HFPD meetings May 21, July 16, August 20, and September 17, 2018
The relevant portions of the minutes for each of these four meetings consist entirely of a statement that either the chairman or one of the members "made a motion to go into Executive Session," followed by the notation "No Action Taken." In its response to the complaint, HFPD asserted that each of these closed sessions was to discuss the possible discipline of an employee. HFPD further stated: "it was the Board's practice that, prior to entering into any closed session pursuant to KRS 61.810(1)(f), a motion would be made to enter closed session to discuss a specific disciplinary matter, and, after a carried vote, the Board would enter closed session but not take final action therein."
As in the case of WFPD, HFPD states that it cannot confirm a vote occurred in each of these cases. Therefore, as with WFPD, we find that HFPD violated the Open Meetings Act in each case, either by failing to conduct a vote or by failing to record that vote in its minutes.
Conclusion
At its meetings on May 10, 2018, and February 14, 2019, EFPD violated the Open Meetings Act by conducting closed sessions not authorized by KRS 61.810(1)(f). Based on the record, neither the extension of an eligibility list nor the voluntary reclassification with reduction in rank constituted the appointment, discipline, or dismissal of an individual employee.
In connection with its meeting on May 16, 2018, WFPD violated the Act, either by failing to authorize its closed session by motion and majority vote or by failing to record those actions in its minutes. In addition, if WFPD did not specify whether its closed session was for the possible appointment, discipline, or dismissal of an employee, it further violated the Act.
In connection with each of its meetings on May 21, July 16, August 20, and September 17, 2018, HFPD violated the Act, either by failing to authorize its closed session by majority vote or by failing to record that action in its minutes. Therefore, we find that each of the three Fire Districts violated the Open Meetings Act at each of the seven meetings identified in the complaint. 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 AMFEMS is the successor entity to the other three Fire Districts. Although Mr. McSwain named AMFEMS as a violator in his complaint, he made no allegations against AMFEMS.
2 Because the complaint alleged no violation by AMFEMS, we find that it did not violate the Act.