TO BE PUBLISHED
In re: Nathaniel S. Green/City of Providence
This matter comes to the Attorney General as an appeal by Nathaniel
S. Green in connection with his complaint against the city of
Providence concerning a closed session of a public meeting of
the city council.
In a letter to the mayor of the city of Providence, dated June
28, 1997, Mr. Green, a member of the city council, maintained
that the mayor and city council violated the Open Meetings Act
in connection with a closed session of city council conducted
on May 19, 1997. Mr. Green said the stated purpose of the closed
session was to discuss "personnel matters" and that
he cautioned the mayor to limit the session to only personnel
matters. Upon convening the closed session Mr. Green said the
mayor discussed at least nine items from a previously prepared
list of topics covering a wide variety of municipal matters.
The mayor responded to Mr. Green in a letter dated July 2, 1997,
and denied that the city violated the Open Meetings Act in any
way. He said the closed session was properly convened pursuant
to KRS 61.815 and that the closed session was held without any
intent to deliberate or take final action on any matters. The
mayor acknowledged that numerous matters were discussed in the
closed session but that the Open Meetings Law permits "open
discussion" among the members of the council.
Mr. Green's letter of appeal was received by this office on July
23, 1997. He reiterated his objections to what had transpired
relative to the closed session at the meeting on May 19, 1997,
and discussed his disagreements with statements contained in the
mayor's response.
The mayor responded to the letter of appeal stating in part that
he and the city have not had an opportunity to respond to Mr.
Green's response to the city's denials.
At the outset we would point out that the city is afforded two
opportunities to respond to a complaint submitted under the Open
Meetings Act which is subsequently appealed to the Attorney General.
KRS 61.846(1) requires that the public agency respond in writing
to a complaint. In addition, pursuant to 40 KAR 1:030, the Attorney
General notifies the public agency that an appeal has been filed
and affords the agency an opportunity to "provide the Attorney
General with a written response to the issues raised in the complaint."
Such a notice was sent to the mayor on July 23, 1997.
In deciding the issues presented by this appeal the statement
set forth in KRS 61.800 must be remembered and followed:
The General Assembly finds and declares that the basic policy
of KRS 61.805 to 61.850 is that the formulation 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.
KRS 61.815 sets forth the requirements for conducting a closed
session. Among the provisions of that statute are that notice
must be given in the open session of the general nature of the
business to be discussed in the closed session, the reason for
the closed session must be stated and the specific provision of
KRS 61.810 authorizing the closed session must be cited. Another
provision states that no matters may be discussed at a closed
session other than those publicly announced prior to convening
the closed session.
According to what has been furnished to this office, including
a copy of the agenda for the special meeting of May 19, 1997,
the purpose of the closed session was "discussion of personnel."
The mayor has conceded that a variety of topics were discussed
during the closed session, most of which had nothing to do with
personnel matters.
The mayor and the city violated the Open Meetings Act, specifically
KRS 61.815, when the council's closed session included topics
other than those publicly announced prior to convening the closed
session. See 95-OMD-93, copy enclosed, at page three.
The publicly stated purpose of the closed session was "discussion
of personnel." KRS 61.810(1)(f) deals with what a public
body can discuss in a closed session relative to personnel. That
statute provides that a meeting of a public agency at which public
business is discussed or at which any action is taken may be closed
for:
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[.]
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 97-OMD-110
and 94-OMD-103, copies of which are enclosed.
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 mayor and the city violated the Open Meetings Act, specifically
KRS 61.810(1)(f), when the stated reason for going into a closed
session was "discussion of personnel." 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 exceptions it was utilizing and why
the session was being closed.
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.
ALBERT B. CHANDLER III
ATTORNEY GENERAL
Thomas R. Emerson
Assistant Attorney General
#771
Copies of this decision
have been distributed to:
Nathaniel S. Green
217 Stewart Street
Providence KY 42450
William C. Villines
Mayor, City of Providence
Willow Street
Providence KY 42450
James G. Womack
Deep & Womack
790 Bob Posey Street
P.O. Box 50
Henderson KY 42420-0050