Request By:
Sam G. McNamara
Hazelrigg and Cox
415 West Main Street
P.O. Box 676
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
As attorney for the Frankfort State Journal, you have requested the Attorney General to issue an opinion on the Kentucky Open Meetings law. Specifically, your questions concern actions taken at a meeting of the Frankfort Electric and Water Plant Board (FEWPB) on July 19, 1983. On that date, the Board announced in open session that it was going into closed session to discuss "salaries" or "personnel matters". Later you discovered that at the closed session the Board granted the General Manager a $4,000 annual salary increase and approved payment of $4,000 for a utility right of way. We will address each of your questions separately.
(1) Was the Board's stated proposal to discuss "salaries" or, as indicated by the minutes, "personnel matters", sufficient notice, under KRS 61.815(1), of the general nature of the business to be discussed in closed session and the reason for the closed session?
KRS 61.815(1) directs that in order to conduct a closed session
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.
The term "general nature of the business to be discussed" is satisfied by terms such as "personnel matter", "collective bargaining" , "litigation", and so forth which express the KRS 61.810 subject matters allowed to be discussed in closed sessions. Further detail would obviate the purpose of closed sessions. OAG 80-248. Therefore, the FEWPB acted properly in giving "personnel matters" as the general nature of business to be discussed in the closed session.
(2) Is discussion of a salary increase legal basis for a closed meeting under the Kentucky Open Meetings Law?
KRS 61.810 authorizes closed sessions for two classifications: (a) those authorized because of the nature of the agency or because of a statutory or constitutional provision; (b) those authorized because of the subject matter to be discussed. The former is not applicable herein. In the latter, however, there are five subject matter exceptions to the Open Meetings Law which can be discussed at closed session: acquisition or sale of real property; litigation; collective bargaining; personnel matters which might lead to appointment, discipline, or dismissal of an individual; and new industry.
The discussion of individual salary increases to city employees in a Board of City Commissioners meeting was not a proper exempted subject matter in OAG 75-340, and therefore had to be discussed in open meeting. It is our opinion that the salary increase to the General Manager of the FEWPB is analogous. The only two subject matter exemptions applicable herein are collective bargaining and personnel matters leading to appointment, discipline, or dismissal. However, neither of these exemptions apply to salary increases. Therefore, it is our opinion that the discussion of a salary increase in closed session was violative of the Kentucky Open Meetings law.
(3) Should the Board have taken a formal vote on the closed meeting, as required by KRS 61.815(2)?
KRS 61.815(2) provides that
Closed sessions may be held only after a motion is made and carried by majority vote in open, public session.
Therefore, the FEWPB was required by statute to move for a closed session and have that motion passed by majority vote in the open meeting before the closed session began. According to your letter, this statutory requirement was violated.
(4) Did the granting of the salary increase and the right of way payment in the closed session constitute violation of the KRS 61.815(3) prohibition against final action in a closed session?
KRS 61.815(3) provides that
No final action may be taken at a closed session.
Therefore, if the FEWPB granted the salary increase and the utility right of way at a closed meeting, those actions were violative of the Kentucky Open Meetings law as they constitute final Board action. Any final action must be passed in open meeting after the closed session. If no final action is required after the closed session, no further announcement or action is required. OAG 80-248.
(5) Was it legal to discuss the right of way issue in a closed meeting called over "personnel matters"?
KRS 61.815(4) provides that
No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
Although a closed session discussing the purchase of a utility right of way is possibly proper subject matter for a closed session under KRS 61.810(2), it was improper for the FEWPB to discuss the right of way at a closed session called for "salaries" or "personnel matters". If the right-of-way fits the subject matter requirement of KRS 61.810(2) which allows the matter to be discussed in closed session, then the procedures outlined in KRS 61.815 must be followed in order to properly conduct a closed session in which that subject is discussed. However, the right of way cannot be purchased in closed session as that constitutes final action and violates KRS 61.815(3).
Therefore, it is the opinion of the Attorney General that the FEWPB acted improperly under the Kentucky Open Meetings law by (1) not taking a formal vote on the closed session in open meeting, contra to KRS 61.815(2); (2) discussing a matter in closed session that was not a proper subject exempted from open meetings under KRS 61.810; (3) taking a final action in closed session, contra to KRS 61.815(3); (4) and discussing a matter in closed session that was not announced to be discussed in open meeting, contra to KRS 61.815(4). The Board's stated proposal to discuss "personnel matters" at the closed session was proper under KRS 61.815(1).