April 25 , 1996

In re: Chris M. Mayhew/Northern Kentucky University


This matter comes to the Attorney General as an appeal by Chris M. Mayhew in connection with his complaint against the Board of Regents of Northern Kentucky University. The letter of appeal from Mr. Mayhew was received by this office on April 11, 1996.

In a letter to the Chairperson of the Board of Regents of Northern Kentucky University, dated April 5, 1996, Chris M. Mayhew, Managing Editor of The Northerner, complained of an action that took place at the Board's meeting of April 4, 1996. Mr. Mayhew said that after meeting in a closed session the Board voted to authorize its executive committee to enter into contract negotiations with a particular person for the position of interim president. Mr. Mayhew maintains that this course of action indicates that the Board has selected a person for the position, that the person's name must be revealed, and, apparently, that the exception in the Open Meetings Act (KRS 61.810(1)(f)) permitting a closed session where the appointment of personnel is involved, is no longer applicable. Mr. Mayhew also stated that when asked to justify its decision of the nondisclosure of the name the Board failed to cite a specific statutory exception in support of its position.

Sheila Trice Bell, Esq., University Legal Counsel, replied to Mr. Mayhew on behalf of the Board of Regents in a letter dated April 10, 1996. Ms. Bell said that at the April 4, 1996 meeting the Board merely authorized its committee to negotiate a personnel contract. No contract has been entered into between the University and any person for the position in question and thus no final decision has been made relative to filling of that position. A final decision will be announced in an open and public session. Ms. Bell in part cited KRS 61.810(1)(f) to support the Board's position of conducting the appointment and selection process to that time in a closed session.

Among the statutorily recognized exceptions to open and public meetings is KRS 61.810(1)(f) which provides in part that discussions 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.

In OAG 91-144, copy enclosed, this office considered some basic principles of contract law and the applicability of KRS 61.810(6), now KRS 61.810(1)(f), to the discussion of the possible appointment of a person by a public agency. While we will not reiterate those principles of contract law in this decision, we did conclude in OAG 91-144 that the contract offer would most likely be accepted by the person after matters such as salary and length of the contract had been discussed and negotiated.

This office said in 94-OMD-63, copy enclosed, that the public agency's reliance upon OAG 91-144 was inappropriate. The 1991 opinion dealt with negotiations pertaining to the possible appointment of a person by a public agency while the 1994 decision involved negotiations with an employee in an attempt to secure the continuance of her employment with the public agency. The latter situation is not included within the exception to an open and public meeting set forth in KRS 61.810(1)(f).

It is, therefore, the decision of the Attorney General that if an offer of employment had not been made and accepted prior to or at the Board's meeting on April 4, 1996, then there was no contract in effect at that time. In the absence of a contract between the parties KRS 61.810(1)(f) would permit the holding of closed or executive discussions between those parties relative to contractual negotiations which might subsequently result in the appointment of the person to a position by the public agency.

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.






Copies of this decision

have been distributed to:

Chris M. Mayhew

Managing Editor

The Northerner

University Center

Northern Kentucky University

Highland Heights, Kentucky 41099

Sheila Trice Bell, Esq.

University Legal Counsel

Northern Kentucky University

Nunn Drive

Highland Heights, Kentucky 41099