Complaint: Council’s closed meeting with investigator violated Open Meetings Act

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By JIM BROOKS
Nelson County Gazette / WBRT Radio

Wednesday, Feb. 15, 2017 — A Bardstown attorney has filed a complaint on behalf of Mayor John Royalty alleging the Bardstown City Council violated the Kentucky Open Meetings Act when it voted to convene a closed executive session at its Jan. 24, 2017 council meeting.

The Kentucky Open Meetings Act requires public agencies to conduct business in public; however, the law has 13 exceptions that allow agencies to meet in private.

From left, Councilman Joe Buckman, Councilwoman Kecia Copeland and Councilman John Kelley.

At the Jan. 24 council meeting, Councilman John Kelley cited KRS 61.810(1)(f) in his motion to enter the closed meeting. The exemption allows an agency to meet in private for “discussions or hearings that might lead to the appointment, dismissal, or discipline of an individual employee, member, or student.”

Bardstown attorney Jason Floyd contends that the council — which has no power to discipline, hire or fire city employees — improperly used the exemption to enter the closed meeting. The real purpose of the meeting was to talk in secret with the council’s investigator, Lexington attorney Scott Crosbie.

Crosbie was originally hired Jan. 3, 2017, to determine if city employees or resources were involved with the production or delivery of an anonymous packet of public records targeting council members Kecia Copeland and Francis Lydian. The documents showed up outside the council meeting room on Nov. 1 — one week before the council election.

Only the six council members and Crosbie were allowed to participate in the Jan. 24 closed meeting. Everyone else — including Mayor John Royalty, City Clerk Barbie Bryant, HR Director Larry Green and City Attorney Tim Butler — was asked to leave the council chambers.

The council’s heightened privacy concerns apparently prompted someone remaining in the council chambers to unplug City Clerk Bryant’s audio recorder from its power source.

After entering the closed session, the council met privately with Crosbie for about an hour. When the council returned to its open meeting, it immediately entertained a motion to expand Crosbie’s investigation to include “government matters requiring further investigation by our investigator.”

Following the meeting, Kelley spoke with reporters and said there was no specific employee or individual targeted at that time, and confirmed the closed session focused on the investigation. Kelley said that as the investigation continues, the identity of the individual or individuals would become clear.

Floyd’s complaint questions if the exemption the council cited to enter the closed meeting was appropriate.

Kentucky’s highest court has ruled in favor of applying very narrow exemptions to the Open Meetings Act. In 2012, a Kentucky Supreme Court opinion stated that :

A public agency’s authority to go into a closed session relative to personnel matters is severely restricted. Under the personnel exception, a public agency may enter closed session only for “discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.” KRS 61.810(1)(f). These three topics are the only personnel matters a public agency may discuss in closed session. Discussion of any other matters is expressly precluded.

Floyd contends the council’s application of the Open Meetings Act exemption in this instance was overly broad as there was no particular individual who was at the time subject to possible discipline or termination. The council also does not have the power to discipline or terminate city employees, though it can make recommendations, Kelley explained.

The council cannot take action with city employees; however, state law gives the council the power to discipline or terminate other members of the council or the mayor. Per KRS 83A.040(9):

“… any elected officer in case of misconduct, incapacity, or willful neglect in the performance of the duties of his office, may be removed from office by a unanimous vote of the members of the legislative body exclusive of any member to be removed, who shall not vote in the deliberation of his removal. No elected officer shall be removed without having been given the right to a full public hearing. The officer, if removed, shall have the right to appeal to the Circuit Court of the county and the appeal shall be on the record.

Kelley and/or the city council have three days to respond to the Open Meetings Act complaint. If the council denies a violation occurred, an appeal may be filed with the Kentucky Attorney General’s office within 60 days of the denial.

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