Request By:
David C. L. Bauer/George Maxwell
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General, (502) 564-7600
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by David C. L. Bauer of the Daily News concerning activities of the mayor and city council of the city of Scottsville. Mr. Bauer complains of the city's failure to respond to his letter and instances where the city council and a committee created by the mayor went into closed sessions to discuss personnel matters.
In a letter to George Maxwell, Mayor of the City of Scottsville, dated March 12, 1993, Mr. Bauer said that the city council during its meeting of January 18, 1993, went into a closed session to discuss "personnel matters." Those matters involved the reading of a report by one of the council members concerning the state of the city's police department.
At some point, according to Mr. Bauer, the mayor appointed a three-member grievance committee consisting of council members to talk to the police and city residents about the situation. During a meeting of this committee on February 22, 1993, the committee went into a closed session with the police chief.
On March 8, 1993, Mr. Bauer said that the city council during its meeting went into a closed session, citing "personnel matters," to discuss the committee's findings.
In Mr. Bauer's opinion, the city council and the committee in question are public agencies and subject to the terms and provisions of the Open Meetings Act. He maintains that the matters with which he is concerned involve discussions pertaining to the formation of public policy and should not be closed to the public. He stated precisely what he wanted from the city, he set forth what the city should do relative to future meetings involving such topics and he noted that the city had three business days to respond and advise him of its decision.
In his letter of appeal to the Attorney General, dated March 29, 1993, Mr. Bauer stated in part that he had received no communication from the city or the mayor in regard to his letter of March 12, 1993, to the mayor. Mr. Bauer made the following requests of the Attorney General's Office:
We therefore ask for a decision from your office on whether, under KRS 61.810, the committee properly went into closed session to discuss these matters.
We also ask for an opinion as to whether the initial City Council meetings were properly closed under the guise of personnel matters, and that copies of all reports, minutes and other materials be made available to us should you decide the meeting was unlawful.
We further ask your office to render invalid any action that might have resulted or might result directly from either of these meetings should they be declared illegal sessions.
KRS 61.846(1) provides in part relative to the duties of a public agency in regard to responding to a complaint filed against the city under the Open Meetings Act:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.
The city council is a "public agency" for purposes of the Open Meetings Act. See KRS 61.805(1)(c). The committee appointed by the mayor would be a "public agency" under the Open Meetings Act pursuant to either KRS 61.805(1)(e), (f) or (g). Thus the mayor and the city violated KRS 61.846(1) of the Open Meetings Act when no written response was sent to Mr. Bauer within the statutorily required time frame.
We have serious doubts as to whether the mayor could legally appoint three council members to oversee the operation of the city police department without violating the separation of powers doctrine (see OAG 82-571, copy enclosed). However, we cannot specifically address that issue within the context of an appeal under the Open Meetings Act. As previously noted, for purposes of the Open Meetings Act, the committee appointed by the mayor is a public agency as that term is defined in the Act.
As a public agency the committee is subject to the terms and provisions of the Open Meetings Act, including KRS 61.810 setting forth the statutorily recognized exceptions to open meetings. Under KRS 61.810(1)(f) that portion of a meeting may be closed if it involves:
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; . . . .
Thus a public agency cannot go into a closed session to discuss personnel matters generally. The only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline or dismissal of personnel of that particular agency. Therefore, the committee created by the mayor violated the Open Meetings Act when it went into a closed session to discuss personnel matters other than those which might lead to the appointment, discipline or dismissal of municipal personnel.
The city council is a public agency and, of course, bound by the terms and provisions of the Open Meetings Act, including those dealing with the exceptions to open meetings. KRS 61.810(1)(f) controls as to those situations where a city council may discuss personnel matters in secret. The city council violated the Open Meetings Act when it went into a closed session to discuss personnel matters other than those which might lead to the appointment, discipline or dismissal of municipal personnel. Personnel matters, generally, cannot be discussed in a closed session of the city council meeting. Since this is a decision under the Open Meetings Act, rather than the Open Records Act, we cannot address your request relative to reports, minutes and other reports and documents being made available to you.
The last matter to be addressed by this decision is your request that this office render invalid any action that might have resulted from any illegal meetings of public agencies.
This office's authority under the Open Meetings Act is set forth in KRS 61.846(2). The Attorney General shall review the complaint and issue a written decision "which states whether the agency violated the provisions of KRS 61.805 to 61.850." This office and this opinion have complied with that statutory mandate. Note that KRS 61.848(5) provides that any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance with KRS 61.810, KRS 61.815, KRS 61.820 and KRS 61.823 shall be voidable by a court of competent jurisdiction.
Either the appealing party, Mr. David C. L. Bauer, or the city of Scottsville may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.