22-OMD-217
October 14, 2022
In re: Jeremy Rogers/City of Russellville
Summary: The City of Russellville (“the City”) violated the Open
Meetings Act (“the Act”) when it entered closed session to discuss a
“personnel matter” under KRS 61.810(1)(f) without stating in the open
session whether such discussions would lead to the appointment,
discipline, or dismissal of the employee. However, the City did not
violate the Act when it returned from closed session to discuss in open
session a topic not placed on the agenda of the regularly scheduled
meeting.
Open Meetings Decision
On September 22, 2022, Jeremy Rogers (“the Appellant”) submitted a
complaint to the presiding officer of the city council alleging the City violated the Act
at its regularly scheduled meeting conducted on September 6, 2022. Specifically, the
Appellant complained that the City entered closed session, but its stated reasoning
for doing so was “for reason of property, personnel, or litigation.” The Appellant
alleged the City gave “no other details” explaining the basis for entering closed
session. The Appellant further complained that, although the agenda for the meeting
contained an item indicating it would enter closed session to discuss “property,
personnel, or litigation,” the next item on the agenda was adjournment. Accordingly,
he left the meeting once the City entered closed session because he believed no further
topics would be discussed upon the City’s return to open session. However, when the
City returned to open session, it voted to approve a bid to repair the roof of a public
building. Thus, the Appellant alleged the City must have discussed the bid in closed
session without providing appropriate notice.
In a timely response, the City denied it had discussed the bid proposal during
closed session. The City claimed its purpose for entering closed session was because“the Mayor needed to discuss a personnel issue with the Council members,” and thus,
closed session discussions were authorized under KRS 61.810(1)(f). The City claimed
to have only discussed the “personnel issue,” in closed session, and that all
discussions related to the bid to repair the roof were conducted when the City
returned to open session. Moreover, the City’ discussion about the bid were recorded
in the City’s meeting minutes. This appeal followed.
When a quorum of members of a public agency discusses, or takes action on,
public business over which it has jurisdiction, a “meeting” occurs and it shall be open
to the public. KRS 61.810; see also Yeoman v. Commonwealth, Health Policy Bd., 983
S.W.2d 459, 475 (Ky. 1998). Under KRS 61.810(1), a public agency may discuss
several enumerated topics in closed session without the public present. Prior to
entering closed session to discuss some of these topics, the public agency must give
notice in open session “of the general nature of the business to be discussed in closed
session, the reason for the closed session, and the specific provision of KRS 61.810
authorizing the closed session.” KRS 61.815(1)(a). One such exemption is
KRS 61.810(1)(f), which authorizes a public agency to enter closed session to hold
discussions “which might lead to the appointment, discipline, or dismissal of an
individual employee, member, or student.” However, a public agency must provide
proper notice when it is entering closed session to discuss employees under
KRS 61.810(1)(f). Because the statute expressly forbids the discussion of “general
personnel matters in secret,” id., this Office has found that a public agency must state
more than “personnel matters” as the basis for relying upon KRS 61.810(1)(f) to enter
closed session. See, e.g., 21-OMD-091 (finding that, prior to entering closed session
under KRS 61.810(1)(f), the agency must state at a minimum whether the discussions
are likely to lead to appointment, likely to lead to discipline, or likely to lead to
dismissal of an employee); 97-OMD-110 (same).
Here, however, the City did not state in open session whether the “personnel
issue” to be discussed related to the appointment, discipline, or dismissal of an
employee.1 Moreover, KRS 61.810(1)(f) “shall not be interpreted to permit discussion
of general personnel matters in secret.” Thus, the City violated the Act when it failed
to state in open session whether its closed-session discussions would lead to the
appointment, the discipline, or the dismissal of an employee. See 21-OMD-091.
The Appellant’s main complaint is the way in which the City discussed the bid
to repair the public building. The Appellant claims this discussion occurred in closed
1
In fact, the City did not specifically state any exemption upon which it was relying, because its
stated reason for entering closed session was to discuss “property, personnel, or litigation.” There are
multiple exemptions that could potentially relate to discussion of “property.” See KRS 61.810(1)(b), (g)
and (n). And discussions about proposed or pending litigation are exempt under KRS 61.810(1)(c).
Regardless, the City claims to have discussed neither “property” nor “litigation” in closed session, so it
is unnecessary to consider these exemptions further.session. The Appellant left the meeting when the City entered closed session to
discuss “property, personnel, and litigation” because the next item on the agenda
following closed-session discussions was adjournment. On appeal, the City claims to
have not discussed the bid to repair the building in closed session. Instead, when the
City reentered open session, the Mayor addressed the bid, and the City discussed it.
Moreover, the meeting minutes reflect the discussion of the bid. Although this Office
cannot decide the factual dispute of whether discussions of the bid occurred in open
or closed session, the fact that such discussions were recorded in the meeting minutes
would seem to reflect such discussions occurred in open session. Thus, the Appellant’s
complaint hinges on whether the agenda should have reflected the fact that
discussions of the bid would occur.
The Act provides for two types of meetings—regular meetings and special
meetings.2 Under KRS 61.820(2), a public agency “shall provide for a schedule of
regular meetings by ordinance, order, resolution, bylaws, or by whatever other means
may be required for the conduct of business of that public agency.” A meeting that
was not previously scheduled under KRS 61.820(2) is a “special meeting,” which has
its own notice requirements. KRS 61.823. Notice of a special meeting must be issued
no less than 24 hours before the special meeting, and such notice must include a copy
of the agenda because “[d]iscussions and action at the meeting shall be limited to
items listed on the agenda in the notice.” KRS 61.823(3). However, no such limitation
applies to regular meetings. In fact, no agenda at all is required at a regular meeting.
And because no agenda is required at a regular meeting, this Office has long held
that public agencies are not confined to discuss the matters on the agendas they
prepare for regular meetings. 11-OMD-132; 01-OMD-175. Thus, the City did not
violate the Act when it discussed in open session a matter not on its agenda.
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
2
A subset of “special meetings” include “emergency meetings.” KRS 61.823(5).#373
Distributed to:
Jeremy Rogers
Elizabeth Teel