Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Meetings Decision
Adair County Community Voice editor Sharon Burton appeals the Columbia City Council's denial of her December 4, 2014 complaint in which she alleged that the council violated the Open Meetings Act at its December 1, 2014 regular meeting by conducting a closed session discussion of the terms of a contract with the city's current police chief. 1 As a means of remedying the alleged violations, Ms. Burton proposed that the council acknowledge the violation, commit to future compliance with the act, and "make public any minutes or recordings of the closed session. " The council rejected the proposed remedies and defended the closed session, in a timely written response, asserting that KRS 61.810 "allows an executive session that deals with the appointment of an employee," and that the December 1 closed session was held for the purpose of discussing "whether the city should make a new appointment with a five year contract for its police chief." Because the Open Meetings Act does not authorize closed session discussion of the terms of a current employee's contract, we find that the council violated KRS 61.810(1) by excluding the public from a meeting of a quorum of its members at which public business was discussed. Further, we find that the council violated KRS 61.846(1) in denying the allegations of Ms. Burton's complaint in a written response that did not "include a statement of the specific statute or statutes supporting the agency's denial . . . ."
On appeal, Ms. Burton explained that at the conclusion of the closed session:
the council returned to do business during an open meeting, [and the] members voted to approve a contract with current Police Chief Jason Cross. When questioned following the meeting, City Attorney Marshall Loy confirmed the executive session was held to discuss the police chief's proposed contract. Mr. Cross has served for several years as the police chief but never under a written contract.
Quoting 94-OMD-63 and 13-OMD-078, Ms. Burton maintained that the council's "closed session discussion of the terms and conditions of a public agency employee's continued employment was improper."
In a decision issued in 2011, following submission of a similar appeal by Ms. Burton, this office rejected the Adair County Hospital District Board of Directors' defense of its closed session discussion of "the potential retention of the interim CEO" under KRS 61.810(1)(f). In 11-OMD-066 the Attorney General reasoned that, with respect to invocation of KRS 61.810(1)(f), "'[a] public agency's authority to go into closed session relative to personnel matters is severely restricted,' and that '[t]he only personnel matters that 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.'" 11-OMD-066, p. 2 citing 93-OMD-49, p. 3. Taking the analysis one step further, we contrasted 94-OMD-63, holding that a closed session discussion of the terms and conditions of an agency employee's continued employment was improper, with OAG 91-144, recognizing the propriety of a closed session contract negotiations relating to the possible appointment of a new agency employee. These decisions, we continued, were synthesized in 96-OMD-97, affirming a university board of regents' closed session contract negotiations with an applicant for the position of interim president. The Attorney General observed:
Among the statutorily recognized exceptions to open and public meetings is KRS 61.810(1)(f) which provides in part that discussion or hearings which may lead to the appointment, discipline, or dismissal of an employee can be conducted in a closed session. The Board was obviously interested in the candidate it was interviewing but there is no evidence that this particular person had actually accepted an offer of employment or that an offer was even extended. Since the Board authorized contract negotiations to be conducted with this person it seems obvious that no final decision had been made concerning his appointment. Most people under these circumstances would not accept an offer without knowing such things as salary or the length of the contract of employment.
96-OMD-97, p. 2
In 11-OMD-066 the Attorney General concluded that closed session contract negotiations aimed at securing the continued employment of the Adair County Hospital District's interim CEO were improper. We observed:
The facts giving rise to this appeal are more closely analogous to the facts in 94-OMD-63 than the facts in 96-OMD-97. The Board acknowledges that the closed session discussion focused on securing the continued employment of the interim CEO and not on reviewing the comparative qualifications of competing applicants for the purpose of identifying the best qualified applicant to fill a vacant position. Although the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion relates to the continued employment of a current employee. Consistent with the rule of strict construction codified at KRS 61.800, and the longstanding position that the terms "appointment" and "reappointment" are not synonymous when the latter term is used to describe the continued employment of a current agency employee, we find that the Board violated KRS 61.810(1) when it conducted a closed session discussion of the retention of the interim CEO.
11-OMD-066, p. 6. Here, as in 11-OMD-066, we find that 94-OMD-63 is controlling and that the council's closed session discussion of the retention of the police chief was improper.
The Columbia City Council does not dispute Ms. Burton's statement that Police Chief Jason Cross, with whom the closed session contract negotiations were conducted, "has served for several years as the police chief." The fact that he was previously employed without a contract does not modify the analysis. The negotiations were aimed at his reappointment, not at his appointment. The reputational interests that KRS 61.810(1)(f) is intended to protect were not implicated since the council was not "reviewing the comparative qualifications of competing applicants" to identify the best qualified applicant and eliminate the lesser qualified candidates. The terms of Chief Cross's contract are clearly subject to public inspection under the Open Records Act and the negotiations that produced that contract are subject to public oversight under the Open Meetings Act.
This position finds support in Carter v. Smith, 366 S.W.3d 414 (Ky. 2012), a Kentucky Supreme Court opinion issued one year after 11-OMD-066. In Carter the Court rejected a board of education's invocation of KRS 61.810(1)(f) to defend closed session discussion of the superintendent's resignation and subsequent consulting contract. The Court opined:
A public agency's authority to go into a closed session relative to personnel matters is severely restricted. Under the personnel exception, a public agency may enter closed session only for "discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student." KRS 61.810(1)(f). These three topics are the only personnel matters a public agency may discuss in closed session. Discussion of any other matters is expressly precluded.
Carter at 420. At page 422 of that opinion, the Court concluded:
The Board may have certainly preferred to negotiate the details of Carter's arranged exit strategy behind closed doors, but "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924. By excluding the public from the discussion of Carter's consulting contract, the Board expanded the intended scope of the personnel exception and improperly concealed matters otherwise appropriate for public view. "The people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know . . . ." 1974 Ky. Acts Chap. 377, HB 100. 2
Any doubt as to the proper resolution of the issue presented in this appeal is resolved by Carter v. Smith. We therefore find that the Columbia City Council violated KRS 61.810(1) by conducting closed session contract negotiations with its current police chief.
The council also committed a procedural violation of the Open Meetings Act by failing to specifically cite KRS 61.810(1)(f) as the statute authorizing the closed session. Accordingly, we find that the Columbia City Council violated KRS 61.846(1), requiring that the denial of an open meetings complaint include "a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply." Although it can be inferred that the council believed KRS 61.810(1)(f) justified its actions, and denial of the complaint, the council did not cite the exception. Its response was therefore both substantively and procedurally improper.
Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Distributed to:
Sharon BurtonMayor Mark HarrisMarshall F. Loy
Footnotes
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