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