TO BE PUBLISHED

95-OMD-93

June 26, 1995

IN RE: R. Keith Cullinan/Louisville/Jefferson County Revenue Commission

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by R. Keith Cullinan, Esq., as a result of the written response he received from John H. Stites, III, Esq., legal counsel for Louisville/Jefferson County Revenue Commission. Mr. Cullinan maintains that the Revenue Commission violated the Open Meetings Act, particularly the provisions relative to conducting a closed session. His letter of appeal was received May 30, 1995.

In a letter to the chairman of the Revenue Commission, dated May 19, 1995, Mr. Cullinan states that the Revenue Commission violated KRS 61.815 because it failed to cite the specific provision of KRS 61.810 which authorized the closed session it had voted to go into during its meeting on May 17, 1995. Mr. Cullinan also maintains the Revenue Commission violated KRS 61.815 as it discussed in closed session matters not related to the stated reason for the closed session, the possible renewal of a commission employee's contract. A matter discussed in the closed session, according to Mr. Cullinan, involved the process which would be instituted to search for a person to replace the employee whose contract was not renewed. Mr. Cullinan further maintains that discussions of the possible renewal of a contract are not exempt under KRS 61.810(1)(f) and that the employee affected by the discussions should have been notified of his right to a public hearing.

Mr. Stites, on behalf of the Revenue Commission, replied to Mr. Cullinan in a letter dated May 25, 1995. In connection with KRS 61.815 and the requirements for conducting a closed session he said that while notice was given in regular open meeting of the general nature of the business to be discussed in closed session and the reason for the closed session was given, he did not recall that the specific section of KRS 61.810 relied upon was cited.

Mr. Stites stated that the purpose of the closed session was to consider whether to reappoint the commission employee or to dismiss him and thus the matter was within the exceptions to open meetings set forth in KRS 61.810(1)(f). The employee involved, said Mr. Stites, requested the opportunity to address the Revenue Commission concerning his continued employment and the request was granted. The employee discussed various matters relative to his job and his performance which in his opinion merited his retention and reemployment. The discussion involved the particular employee, his past performance and his ability to function in the future with the Revenue Commission.

Mr. Stites further said that it became apparent during the closed session that the Revenue Commission was divided on whether to reemploy the person. A formal search procedure was proposed to fill the position with the understanding that the employee could be reappointed if he proved to be the best applicant. The meeting returned to an open and public session and a motion was made and adopted whereby the search procedure was approved. Mr. Stites denied that a violation of the Open Meetings Act occurred during the meeting in question.

KRS 61.815 deals with the requirements for conducting a closed session. Subsection (1)(a) of that statute requires that notice be given in the regular open session of the general nature of the business to be discussed in closed session, the reason for the closed session be given, and the specific provision of KRS 61.810 authorizing the closed session be stated by the public agency.

While the first two requirements were met the Revenue Commission admitted it could not recall that the specific section of KRS 61.810 it was relying upon was cited during the open and public session. Since the statute mandates that particular measures be taken before the public agency goes into a closed session, it is a violation of the Open Meetings Act if the public agency does not satisfy all three of the requirements set forth in KRS 61.815(1)(a), including the citation of the statutory subsections relied upon to support closing the meeting.

The stated purpose of the closed session was to discuss the matter of whether or not a Revenue Commission employee would be retained. Such a matter is a proper subject for a closed session under KRS 61.810(1)(f). However, KRS 61.815(1)(d) provides that no matters may be discussed at a closed session other than those publicly announced prior to convening the closed session. Thus, the closed session had to be limited to whether or not the employee would be terminated and matters such as the development or selection of a search procedure could not properly be discussed at a closed session. Furthermore, that is not a proper subject for a closed session under KRS 61.810(1)(f) even if it had been publicly announced.

In connection with the allegation that the employee in question should have been given notice that he had a right to a public hearing under the Open Meetings Act, the attention of the parties is directed to 94-OMD-122, at page three, where the following appears:

The Open Meetings Act does not give municipal employees the right to notice and a hearing in a termination proceeding. It only gives that employee the right to an open and public hearing if a hearing has been scheduled by the municipal authorities concerning the dismissal. The Open Meetings Act does not require notice and a hearing when the city announces it is going into a closed session to discuss the possible dismissal of a particular employee.

Thus, the Revenue Commission did not violate the Open Meetings Act when it went into a closed session to discuss whether or not a particular employee would be retained without notifying the affected employee of the discussion and without scheduling a hearing on the matter.

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/712

Copies of this decision

have been mailed to:

R. Keith Cullinan, Esq.

One Corporate Plaza, The 22nd Floor

220 W. Main Street

Louisville, Kentucky 40202

John H. Stites, III, Esq.

3300 National City Tower

101 South Fifth Street

Louisville, Kentucky 40202-3197