Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by Angie Hatton, a reporter for The State Journal , as the result of the written response she received from Paul C. Gaines III, Esq., on behalf of the Board of Regents of Kentucky State University.
In a letter to the Chairman of the Board of Regents, dated September 5, 1995, Ms. Hatton said the Board of Regents went into a closed session during the course of its meeting held on August 30, 1995, "to discuss a 'charge to the consultant' hired to evaluate President Mary Smith's performance." Ms. Hatton maintained that such a matter should have been discussed in an open and public session of the meeting.
Mr. Gaines replied, on the board's behalf, to Ms. Hatton in a letter dated September 7, 1995. He said that the discussion during the closed session "directly related to what action the Board of Regents will take in the future with respect to President Smith's contract." He referred to KRS 61.810 which authorizes public agencies to close meetings when the discussions might lead to the appointment, discipline or dismissal of an employee of the public agency. He said the discussions which the board conducted during the closed session directly related to President Smith's employment with the University and will have an effect upon her future contract. Mr. Gaines denied that the board discussed the consultant's fee during the closed session.
In her letter of appeal to the Attorney General, dated September 8, 1995, Ms. Hatton said the board went into a closed session, according to the agenda for that meeting, for a "discussion of charge to consultant. " No other reason was given at the meeting for conducting the closed session. Ms. Hatton further maintained that if the board did not go into the closed session to discuss the consultant's fee it either deliberately misled the public or it changed its reason to subsequently legalize the closed session.
Ms. Hatton furnished this office with a copy of a document designated:
Agenda, Special Meeting, Board of Regents, Kentucky State University, August 30, 1995.
That document listed such items as "prayer," "roll call," and "approval of the minutes of the July 17, 1995 Board of Regents meeting." Under "Action Item" the following was the only entry:
I Executive
A. Discussion of charge to the consultant.
Since a special meeting of the board was involved KRS 61.823, relative to special meetings, is applicable. KRS 61.823(3) provides as follows:
The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussion and action at the meeting shall be limited to items listed on the agenda in the notice.
If the agenda of the special meeting furnished by Ms. Hatton is the agenda which was incorporated into the board's written notice of its special meeting of August 30, 1995, then the board's meeting was limited to, other than merely procedural matters, one substantive item which was a "discussion of charge to the consultant. " Any other substantive matter discussed at that special meeting whether in an open or closed session would result in a violation of the Open Meetings Act.
In 94-OMD-119, copy enclosed, at page two, this office said:
The notice of the special meeting for August 31, 1994, had only one agenda item and that was the discussion of "alternatives of wastewater treatment for Cagle's processing plant." The city commission, whether in open or closed session, could not legally discuss anything else but that agenda item and if it did so it violated the Open Meetings Act.
In connection with conducting a closed or executive session note that KRS 61.815(1) requires in part that notice be given in the regular open meeting of the general nature of the business to be discussed in the closed session, the reason for the closed session, and the specific subsection of KRS 61.810 authorizing the closed session. KRS 61.815(1) also states that no final action can be taken at a closed session and no matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
It is, therefore, the decision of the Attorney General that if the agenda incorporated into the written notice of the board of regents of its special meeting of August 30, 1995 listed but one substantive item for discussion (the consultant's fee), discussion by the board at that special meeting of any other substantive matter, whether discussed in an open or closed session, is a violation of the Open Meetings Act.
A party aggrieved by this decision may challenge it 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. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the Circuit Court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.