TO BE PUBLISHED
97-OMD-110
July 7, 1997
In re: College Heights Herald/Western Kentucky
University Board of Regents
Open Meetings Decision
This matter comes to the Attorney General as an appeal by
legal counsel for the College Heights Herald, a student
operated newspaper at Western Kentucky University, in connection
with its complaint against the Western Kentucy University Board
of Regents.
In a letter to the Chairperson of the Board of Regents, dated
May 2, 1997, counsel for the newspaper objected to a procedure
followed by the board at its meeting on April 29, 1997. Prior to
going into a closed session, counsel for the newspaper said the
board stated that the nature of the business to be discussed in
the closed session involved "specific employee
matters." Legal counsel assumed the closed discussion
pertained to the selection of an interim president as when the
closed session ended a motion was made during the open session to
appoint Barbara Burch as the University's interim president.
Counsel for the newspaper maintained that the board is required
to provide additional information regarding the subject matter to
be discussed when citing the exception to an open and public
meeting set forth in KRS 61.810(1)(f).
The University's legal counsel responded on behalf of the
Board of Regents to the newspaper's legal counsel, in a letter
dated May 12, 1997, and stated in part that the board invoked KRS
61.810(1)(f) on April 29, 1997, to go into a closed session for
"the discussion of individual personnel matters." The
board discussed specific persons for the position of interim
president as well as other personnel matters consistent with the
exceptions set forth in KRS 61.810(1)(f). University legal
counsel maintained that the board is only required in the open
meeting to set forth the general nature of the business to be
discussed in the closed session.
Letters which had been submitted to this office from legal
counsel for the newspaper, dated May 14, 1997, and from legal
counsel for the University dated May 19, 1997, in connection with
another appeal filed under the Open Meetings Act were resubmitted
as the same issue that is involved in the present appeal was
raised in those letters. This office did not in the earlier
appeal deal with that matter as the complaining party had not
followed the required procedural steps to get that issue before
this office in an appeal.
The other documents considered by this office in connection
with this particular appeal are the letter of appeal from legal
counsel for the newspaper, dated June 18, 1997, and received June
20, 1997, and a letter from legal counsel for the University,
dated June 19, 1997.
The student newspaper is not disputing the board's authority
to go into a closed session to discuss the possible appointment,
discipline or dismissal of specific university personnel. The
newspaper is not maintaining that the board, once it went into
closed session during the April 29, 1997 meeting, did anything
improper. The newspaper is complaining about the sufficiency of
the board's statements in open session as to why it was going
into a closed session. The question is whether references to
"specific employee matters" or "individual
personnel matters" are sufficient explanations to enable a
public agency to utilize the exceptions to an otherwise public
meeting set forth in KRS 61.810(1(f).
KRS 61.810(1)(f) permits a public agency to go into a closed
session relative to:
Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret[.]
In connection with going into a closed session KRS
61.815(1)(a) requires that:
Notice shall be given in regular open meeting 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[.]
Interpretation of the provisions of the Open Meetings Act is
governed by the principles set forth in KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
A public agency's authority to go into a closed session
relative to personnel matters is severely restricted. General
personnel matters cannot be discussed in a closed session. The
only personnel matters which 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.
See 93-OMD-49, copy enclosed, at page three, and OAG 90-125, copy
enclosed, at page two.
Prior to going into a closed session for one of the specific
purposes authorized by KRS 61.810(1)(f), a public agency must
state during the regular and open portion of the meeting the
general nature of the business to be discussed and the reason for
the closed session. While the public need not be advised as to
the name of the specific person being discussed in connection
with a possible appointment, dismissal, or disciplinary action,
the public is entitled to know the general nature of the
discussion which would be that it involves either a possible
appointment, a possible dismissal, or a possible disciplinary
matter relative to a specific unnamed person or persons.
The public agency violated the Open Meetings Act when it
invoked the exceptions set forth in KRS 61.810(1)(f) and gave as
its reasons the intent to discuss "individual personnel
matters" or "specific employee matters." Since the
only personnel matters which can be discussed in a closed session
pertain to the possible appointment, discipline, or dismissal of
personnel of that particular agency, the public agency should
have indicated which of those particular authorized exceptions it
was utilizing and why the session was being closed (which
frequently involves privacy considerations).
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
proceeding under the Open Meetings Act.
A. B. Chandler III
Attorney General
Thomas R. Emerson
Assistant Attorney General
# 680
Copies of this decision
have been distributed to:
Amanda Anderson Young
Harned, Bachert & Denton
Attorney for the College Heights Herald
324 East 10th Avenue
P.O. Box 1270
Bowling Green KY 42102-1270
Deborah Tomes Wilkins
University Counsel
Western Kentucky University
Officer of the President
1 Big Red Way
Bowling Green KY 42101-3576