Request By:
Mr. Andrew Telli
Daily News
813 College Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Steven L. Beshear, Attorney General; BY: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the Kentucky Open Meetings Law, KRS 61.805-61.850, on the following facts and questions:
You state that the Bowling Green City Commission has scheduled a hearing for December 15 to evaluate the City Manager's performance for the past two years; all five members of the current board of commissioners have indicated that they want a closed session; during the recent city commission election campaign the Mayor was quoted in the newspaper as saying he would like to fire the City Manager. Your questions are: (1) Is such a hearing a disciplinary hearing which is authorized to be closed under the Open Meetings Law? (2) Is the Commission required to take any steps to indicate disciplinary action is possible, such as publishing notice, including it in the motion to go into closed session, etc.? (3) Can the Commission go into closed session without formal charges against the City Manager being filed?
A public body may hold a closed session on any one of five subjects specified in KRS 61.810. Subsection (6) of the statute provides that a closed session may be held on
"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, provided that this exception is designed to protect the reputation of individual persons and shall not be interpreted to permit discussions of general personnel matters in secret."
In answer to your question (1), a discussion to evaluate the City Manager's performance for the past two years is a proper subject for a closed session because it is a discussion which might lead to some personnel action.
Question (2) is answered by referring to KRS 61.815(1)(2) which read as follows:
(1) "Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session and the reason for the closed session;
(2) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session. "
All that is required is that the motion to go into closed session should state that the purpose of the closed session will be to discuss a personnel matter involving a particular employee. If any negative action is taken against the employee in the closed session without giving him the option of an open hearing, he will be entitled to an open hearing later if he so desires.
In answer to question (3), the Commission can go into closed session without formal charges being made against the employee. 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.