TO BE PUBLISHED 

94-OMD-63

May 12, 1994

IN RE: The Advocate-Messenger/Danville-Boyle County

Planning and Zoning Commission

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by The Advocate-Messenger newspaper of Danville concerning events that transpired at recent meetings of the Danville-Boyle County Planning and Zoning Commission, hereinafter referred to as the Commission.

In a letter to the Chairperson of the Commission, dated March 22, 1994, John T. Davis, the newspaper's managing editor maintained that the Commission violated the Open Meetings Law on three occasions.

The first situation involved what was deemed the resignation of a Commission employee. The newspaper maintained that a resignation cannot be discussed in executive session. The contract agreed upon at the meeting was prepared because the employee in question had wanted to resign and an alternative work format was arranged which is different from what existing personnel rules permit.

The second situation involved the suspension of a Commission employee. One of the Commission members stated that she alone consists of the personnel committee which called the special meeting to decide if the employee should be suspended. The newspaper questions the legality of this action but does not formally raise the question of whether one person can

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function as the personnel committee when three people originally comprised the committee. Questions were also raised concerning the failure to keep minutes of the special meeting and the failure to notify the newspaper of the meeting.

The third situation concerned the determination of the charges to be brought against the Commission's employee. The Commission apparently is required to approve the specific charges but the minutes do not reflect that the Commission approved the charges which were heard by the personnel committee. The newspaper said the bringing of the charges constituted a final action.

Kevin L. Nesbitt, Esq., in a letter dated March 28, 1994, responded, on behalf of the Commission, to Mr. Davis. Mr. Nesbitt stated that there was no resignation of a Commission employee. The employee presented the Commission with the proposal for a short term employment contract and, after a discussion of salary, benefits and length of contract, a tentative agreement was reached. The agreement was approved in an open session at a subsequent meeting. Mr. Nesbitt cited OAG 91-144 in support of the Commission's position.

In regard to the suspension, Mr. Nesbitt said the Commission and its personnel committee acted properly. Minutes of a closed session need not be made available and the suspension matter was an emergency situation which precluded notification to the newspaper. He further maintained that the suspension was not a final action as no final decision was made at that time concerning the person's continuing employment.

As to the third matter, Mr. Nesbitt said that the setting of charges against an employee was not a final action. The charges were approved in executive session to give the employee advance notice of what would be considered at the subsequent hearing conducted by the personnel committee.

The newspaper's letter of appeal, received by this office on April 7, 1994, raised the same three issues the newspaper had previously presented to the Commission. The newspaper maintained that the employment contract does not fall within the "appointment, discipline, or dismissal" exception to public meetings as it merely continues the person's employment even though the terms and conditions have changed. The newspaper also said that the Commission violated the law relative to the matter of the suspension of the Commission's employee.

The undersigned Assistant Attorney General contacted Kevin L. Nesbitt, Esq., by telephone in an attempt to obtain

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additional information relative to the Commission's personnel committee. Mr. Nesbitt's cooperation is appreciated and this office received a letter from him dated April 22, 1994, to which were attached copies of various documents including job descriptions (assistant enforcement office/planning director) and the Commission's By-Laws. Among other things, Mr. Nesbitt's letter indicated that since the contract was signed the person involved has resigned, effective April 22, 1994.

KRS 61.810(1)(f), formerly codified as KRS 61.810(6), now provides as follows relative to one of the statutorily recognized exceptions to open and public meetings:

In connection with the first situation, the contractual matter negotiated during a closed session, each of the parties to this appeal has made at least one valid point. As the Commission has maintained, the employee in question did not resign as far as this particular matter is concerned. In addition, the newspaper is correct in that the person in question, as a result of the matter negotiated in the closed session, merely continued her employment with the Commission, even though the terms and conditions of the continuing employment were changed.

The Commission's reliance upon OAG 91-144, copy enclosed, is misplaced as that advisory opinion dealt with negotiations concerning the possible appointment of a person by a public agency. In this situation the person was already an employee of the public agency. In an attempt to secure the continuance of her employment the Commission negotiated with

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her and agreed upon an arrangement which changed the terms and conditions of her employment with the Commission.

Since the negotiations and discussion with the employee did not involve the possible appointment, discipline, or dismissal of that person, the negotiations and discussions should not have taken place in a closed session. The exception in KRS 61.810(1)(f) is not applicable to this situation.

The second situation, the suspension of a Commission employee by the Commission's personnel committee, raises an issue which the appealing party has not presented but which we cannot avoid discussing in reaching a decision. The newspaper maintains that the personnel committee acted improperly but the more basic question is whether the personnel committee is legally authorized to act at all.

The personnel committee is clearly a public agency (KRS 61.805(2)(g)) and, generally, a public agency may conduct a meeting only when at least a quorum of its members are present. See KRS 61.810(1) and 93-OMD-63, copy enclosed, at pages 4-5.

The personnel committee is supposed to consist of three persons but, for whatever reason, it now consists of one person. A quorum for a three person committee is two persons. As stated in OAG 94-12, copy enclosed, at page two, ordinarily the whole membership of the body is counted in determining the legal quorum. Where vacancies occur, the total number entitled to membership must be counted and not just the remaining members.

It is the decision of this office that the Commission's personnel committee, now consisting of one person, does not have a legal quorum and the personnel committee has no legal authority to act on any matter including, of course, the conducting of the suspension hearing. Because there was no quorum, there was no meeting. Therefore it is unnecessary for us to consider the issues regarding the recording of minutes and notification to the press.

The third situation presented concerns the Commission's closed session to determine the charges to be brought against a particular Commission employee.

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As previously indicated, KRS 61.810(1)(f), formerly codified as KRS 61.810(6), authorizes a public agency to go into a closed session when the matter involves the possible appointment, discipline, or dismissal of an individual employee. The situation here involved a discussion leading to possible disciplinary action against a Commission employee. We are enclosing copies of OAG 84-46, OAG 81-413, and OAG 81-135 which are dispositive relative to this issue.

Thus, it is our decision that the Commission properly went into a closed session pursuant to KRS 61.810(1)(f) to consider possible disciplinary charges against a Commission employee.

Either party or both parties to this appeal 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. 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.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

sjj/469

Enclosures

Copies of this decision

have been mailed to:

John T. Davis

Managing Editor

330 S. Fourth

P.O. Box 149

Danville, Kentucky 40423-0149

Kevin L. Nesbitt, Esq.

The Staton Building

439 West Walnut Street

Suite 101

Danville, Kentucky 40422