Request By:
Mr. Philip Taliaferro, Chairman
Kentucky Personnel Board
Room 383, Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General as to whether the Personnel Board is exempt from the Open Meetings Law, KRS 61.805 to 61.850. You further state:
"We are specifically interested in your opinion as to whether or not the Board at the time of its deliberation of recommended orders submitted by hearing officers and/or Board members, has the right in which to close its meeting to the press and public during its deliberations and its vote on these cases before it. As you know, the individual cases heard are held in a public forum and open to the the press and public."
KRS 18A.070(3) provides, inter alia: "All meetings shall be open to the public as provided in KRS 61.870 to 61.884." This statute expressly places the Personnel Board under the provisions of the Open Meetings Law.
In answer to your question concerning whether the Board may go into closed session at the time of its deliberation of recommended orders submitted by hearing officers and/or board members, or to deliberate after it has received evidence in an open hearing, it is our opinion that the Board may go into closed session by following the procedure set forth in KRS 61.815. The pertinent provisions of that statute are as follows:
(1) Notice shall be given in regular open meeting of the general nature of the business to be discussed in the 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;
(3) No final action may be taken at a closed session;
(4) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session. "
Failure to comply with the provisions of KRS 61.815 has been condemned by the Court of Appeals in the case
Stinson v. State Board of Accountancy, Ky. App., 625 S.W.2d 589, 592 (1981).
We believe that the Personnel Board is authorized to conduct such closed sessions for the purpose of deliaberation under KRS 61.810(6) which exempts from the Open Meetings requirement "discussion or hearings which might lead to the appointment, discipline or dismissal of an individual employee . . . ." However, no final action by vote may be taken on such matter in the closed session.
We would also point out that KRS 61.805 exempts judicial or quasi judicial bodies from the provisions of the Open Meetings Law. We believe that when the Personnel Board is deciding a case involving the complaint of an applicant or an employee it is performing a quasi judicial function and after the evidence is received in open session it may go into closed session to deliberate its decision. As a fact finding and adjudicating body, similar to a jury, it needs to have a free and uninhibited exchange of views among the members, recalling the evidence and discussing its implications and its weight. Such cannot be had in the presence of opposing lawyers, interested parties, members of the press and the public generally.
Except when the Board is deliberating a decision on a particular case involving an individual or discussing a matter which is exempt under KRS 61.810 its meetings are required to be open to the public under the provisions of KRS 18A.070(3).