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Open Meetings and Personnel Issues
Posted on December 29, 2015 by Andrea Shindlebower in Open Meetings Issues

Open Meetings and Personnel Issues

The Open Meetings Act (the “Act”), found in KRS 61.805 through 61.850, was adopted by the General Assembly to ensure that governmental decision making is handled in the public view. It requires meetings of public agencies, including a city’s legislative body, to be open to the public, except for expressly authorized closed sessions. The provisions of the Act are mandatory and are to be liberally construed in favor of an open government.

However, the Act does provide certain specific exceptions to the requirement that meetings of a public agency be open to the public. These exceptions are found in KRS 61.810.  For purposes of this article, the personnel exception is found in KRS 61.810(1)(f) and states “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.”

As the last sentence states, this exception does not include discussing general personnel matters such as compensation, creation of a new position, expansion of a department, resignations or independent contractor negotiations.  The only matters that can be discussed in a closed meeting (also known as an executive session) are those that specifically deal with appointments, discipline, or dismissal of employees or officers.  This exception also does not apply if the officer or employee who is the subject of the deliberation or hearing requests a public hearing. 

In addition, KRS 61.815 sets out the requirements for holding a closed session. It provides:

  • 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;
  • Closed sessions may be held only after a motion is made and carried by a majority vote in an open public session;
  • No final action may be taken in a closed session; and
  • No matters may be discussed in a closed session other than those publicly announced prior to convening the closed session

Thus, a quorum of the public agency must be assembled in the meeting room, the meeting must be convened as an open meeting pursuant to proper notice, and the legislative body must announce that a closed session will be held and must identify the sections of the Act authorizing the closed session.  For example, in regards to hiring a new police chief, the legislative body would move to go into closed session pursuant to KRS 61.810(1)(f) in order to discuss the appointment of a police chief.  Once the discussion is complete the motion would be made to return to open session to vote on the appointment. 

For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.

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Performance Evaluations – To Do or Not To Do?
Posted on December 29, 2015 by Andrea Shindlebower in Employee Performance

 

Performance evaluations can be an effective management tool and can also serve as a means to preventing wrongful discharge and discrimination claims.  However, if used improperly, the employee evaluation can lead to costly litigation.  A proper evaluation advises the employee whether he or she meets the employer's expectations.  On the other hand, a bad evaluation process does not accurately inform employees of deficiencies in their performance and can actually lead the employee and others to believe that the performance is satisfactory or even above expectations.  For this reason, an employer should determine what benefit it actually receives from the use of employee evaluations and the effectiveness of how they are being used and if they should be done at all.

The supervisor responsible for completing the evaluation will make the difference between a good evaluation process and a counterproductive one.  If the evaluator is honest, timely and forthcoming about the employee's performance, the process will be beneficial by advising employees whether they meet their employer's expectations and allowing them to improve their deficiencies before discipline or termination becomes necessary.  However, in many instances, the evaluator will rate employees as "satisfactory" without specific reference to actual performance.  This is sometimes due to a lack of training or simply a desire to avoid confronting the employee.  In the rush to complete forms and meet competing demands, supervisors may use the same comments for nearly all their employees.  If an employee is later terminated for poor job performance, these "satisfactory" evaluations can be used against the employer as evidence of satisfactory job performance.  For this reason training on the process and what is expected of the evaluator is extremely important. 

Generally, the best approach to the use of employee evaluations is one which incorporates honesty, accuracy and timeliness as a means to communicate the level of performance.  Evaluators should rate each employee accurately using an honest evaluation which is reflective of true performance and clearly outlines what will be expected of the employee in the future.   They should also discuss the evaluation with the employee in detail, giving them full opportunity to comment, and have them sign that they have been made aware of it.  It is also important to use performance evaluations consistently.  Any preferential treatment or leniency toward an employee may be cited as evidence of discrimination by a similarly situated, but less favorably treated, employee.  Finally, never use an evaluation as a last-minute attempt to document performance problems in order to justify termination.  This practice will undoubtedly come back to haunt the employer at a later time.

Lastly, consider using every day coaching as a part of your performance evaluation process.  Train your supervisors to give good and bad feedback on a frequent basis, so that no one is blindsided by a bad evaluation.  Whatever process you use, keep in mind that it should be used as a means to correct problem behavior before it becomes an issue that will be subject to discipline or termination. 

For samples or more information on this or any other personnel related matters contact Andrea Shindlebower. 

Do you have an employment law or HR topic that you would like addressed in this article?  If so send an email toashindlebower@klc.org.  

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Random Drug Testing – What Employees Are Considered Safety Sensitive?
Posted on December 29, 2015 by Andrea Shindlebower in Drug Testing

Random Drug Testing – What Employees Are Considered Safety Sensitive?

Because cities are governmental entities, cities should be aware that randomly drug testing employees who do not serve in safety sensitive positions could result in significant liability.  Testing for employees occupying positions that are not categorized as safety sensitive must be based on a reasonable suspicion that drug use is occurring or in post-accident circumstances.  The information below can be used to help guide you in determining which positions may be safely categorized as safety sensitive.  This information should be reviewed with your city attorney before any action is taken. 

Safety sensitive positions are those that contain duties that are routinely performed as a part of that position which could reasonably be expected to affect the health, safety and security of others.

Below is a list of possible public employees that could be considered to have exceptional safety-sensitive responsibilities in the area of public safety. They include:

  • Police officers
  • Emergency dispatchers
  • Emergency Medical Technicians/Paramedics
  • Firefighters 
  • Heavy equipment operators
  • Employees with commercial driver’s license (CDL)
  • Mechanics working on CDL regulated vehicles
  • Gas pipeline workers

Additionally, a case can possibly be made that personnel who drive certain city vehicles (such as vehicles transporting senior citizens, the handicapped and children), city swimming pool life guards, and personnel supervising children on city playgrounds can be included in the category of safety sensitive personnel. 

When making these determinations the city must keep in mind that random testing can only be done on an employee whose job duties can be shown to directly impact public safety.

For more information on drug testing or other personnel matters, contact Andrea Shindlebower with the KLC Legal Department.   

 

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Employee Discrimination

DISCRIMINATION 
The following series of articles deal with employee discrimination issues. (Dates indicate when the article originally appeared in KLC DirectLine)

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