Request By:
Mr. Ed Hill, Manager
WMJL
P.O. Box 68
Marion, Kentucky 42064
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David M. Whalin, Assistant Attorney General
You have requested an opinion of the Attorney General concerning the interrelationship of KRS 61.805 et seq., the Open Meetings Law, and the employment of the Marion City Administrator. You have posed three questions based upon the following fact situation.
On Monday night Nov. 14th the Marion City Council met in a specially called meeting and conducted an official act for the city by employing a city administrator. WMJL, in compliance with the Sunshine Law, had requested, in writing, that we be notified of such meeting so that we might notify the general public. WMJL was not aware of the specially called meeting, or its purpose, until noon (12:00 N) on Nov. 14, 1977, when we learned of the meeting by calling the City Hall. About 1:00 pm the same date we were notified in writing of the 7:00 pm meeting, only 6 hours prior to the meeting. The law requires 24 hours notification. We are also informed that a majority of the council had already met and decided on one applicant, three days before the called meeting, even though 3 applicants were scheduled for interviews at the meeting.
You stated that you have filed the written request for notification of special meetings in conformity with KRS 61.825(1). It shall be assumed that your request was timely filed in relation to the events you describe so that it constituted a valid request.
KRS 61.810(6) allows a public agency to discuss the appointment of employees in closed session. As long as no final action is taken, such a meeting is permitted.
You described a closed session three days prior to the November 14, 1977 meeting. From your letter, it appears that the subject matter was proper for a closed session under KRS 61.810(6). It is not possible, however, to ascertain from your letter if the requirements of KRS 61.815 were met: notice of a closed session must be given at a regular open meeting, a majority vote to hold the session must be taken, no final action can be taken in that session, and the closed session must be limited to those matters announced at the public session. The Kentucky Court of Appeals has stated that there is a condition precedent to conducting a valid closed session. Jefferson County Board of Education v. The Courier-Journal & Louisville Times Co., Ky.App., 551 S.W.2d 25 (1977). No final action, of course, may be taken at the closed session.
You state that a majority of the council met and decided on the appointment at the closed session. If this constituted final action, it was in violation of KRS 61.815(3). If there was no notice and vote in public session, it was in violation of KRS 61.815(1), (2) & (4) even if no final action was taken.
According to KRS 61.825(1), twenty-four hour notice of special meetings is mandatory unless there are special circumstances which militate against this. In OAG 77-393, we stated "[u]nder emergency circumstances the 24-hour notice may be replaced by such notice as is reasonable under the existing circumstances." Twenty-four hour notice is to be the rule, not the exception. From your letter, it is not possible to ascertain if there was an emergency. If there was no emergency, then the meeting violated KRS 61.825. Under the Supreme Court decision of Fiscal Court of Jefferson County v. The Courier Journal & Louisville Times Co., Ky., 554 S.W.2d 72 (1977), the appointment at the special meeting of the city administrator is void if there was no twenty-four hour notice and if there was no emergency. The Supreme Court in that decision also declared illegal "unofficial" meetings, closed to the public, at which public business is discussed by a majority of the governing board.
Your last question concerns your legal remedies. The two cases cited above describe the appropriate methods of obtaining injunctive relief.