Request By:
Mr. H. Moss Vance
Managing Editor
The Woodford Sun
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on several questions pertaining to the Kentucky Open Meetings Law and specifically to KRS 61.815 which deals with the requirements for conducting a closed session. Since the wording of that statute is what seems to us to be a near enigma, we will take this occasion to make an analysis of the relationship between KRS 61.810 and 61.815.
KRS 61.810 reads as follows:
"All meetings of a quorum of the members of any public agency at which any business is discussed or at which any action is taken by such agency, are declared to be public meetings, open to the public at all times, except for the following:
"(1) Deliberations for decisions of the Kentucky Parole Board.
"(2) Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of the specific piece of property to be acquired for public use or sold by a public agency.
"(3) Discussions of proposed or pending litigation against or on behalf of the public agency.
"(4) Grand and petit jury sessions.
"(5) Collective bargaining negotiations between public employers and their employees or their representatives.
"(6) 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, provided that this exception is designed to protect the reputation of individual persons and shall not be interpreted to permit discussions of general personnel matters in secret.
"(7) Meetings between public agencies and industrial prospects.
"(8) State cabinet meetings and executive cabinet meetings.
"(9) Committees of the General Assembly other than standing committees.
"(10) Meetings which federal or state law specifically requires to be conducted in privacy.
"(11) Meetings which the Constitution provides shall be held in secret." (Emphasis ours.)
Authorized closed sessions fall into two general classifications: (a) those authorized because of the nature of the agency or because of a statutory or constitutional provision; (b) those authorized because of the subject matter to be discussed. We have underlined in the above quotation of the statute those provisions having to do with subject matter. Briefly summarized, there are five subject matter exceptions to the Open Meetings Law: acquisition or sale of real property; litigation; collective bargaining; personnel matters; new industry.
The first paragraph of KRS 61.815 presents a problem of statutory interpretation. It reads as follows:
"Except those public agencies excluded under KRS 61.810(1), (3), (4), (6) but only so far as it relates to students, KRS 61.810(7), (8), (9), (10) and (11), the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:"
Following this introductory paragraph are four subsections of the statute prescribing the procedure for going into and coming out of a closed session.
Taken literally the introductory paragraph of KRS 61.815 excludes from any formality concerning going into a closed session every exception listed in KRS 61.810 except (2), (5) and (6) as it relates to students -- acquisition or sale of real property, collective bargaining negotiations and personnel matters. Such a literal interpretation would mean that an agency could go into closed session without any of the formalities set forth in KRS 61.815 under the other eight exceptions listed. However, for reasons we will state below, we do not believe that the literal interpretation comports with the legislative intent. We believe that the legislative intent is that agencies, per se, which are exempt from complying with the Open Meetings Law, such as the Parole Board, juries, the Governor's cabinet, committees of the General Assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in KRS 61.815, and that agencies which are not exempt per se but which go in closed session to deal with an excepted subject matter must observe those formalities.
Our interpretation is derived, in part, by certain phrases in KRS 61.815. The introductory paragraph in the statute begins with the words "except those public agencies excluded. . ." This indicates that it is the nature of the agency which allows for dispensing with formality in going into closed session.
Also, KRS 61.815(1) indicates that when the closed session is based upon subject matter the formalities must be observed. It reads:
"(1) Notice shall be given in regular open meetings of the general nature of the business to be discussed in the closed session and the reason for the closed session; "
A third reason underlying our interpretation is practicality. When a public agency which is generally required to hold open meetings finds it necessary to go into a closed session to deal with a particular excepted subject matter, the spirit of the Open Meetings Law and the concern of the public is best served by observing the steps set forth in KRS 61.815. For such an agency, convened in a regular or special meeting in accordance with KRS 61.820-61.825, to go into closed session without first giving notice in open session of the general nature of the business to be discussed and without first passing a motion in open session, would create doubt in the minds of members of the public as to whether the Open Meetings Law was being properly observed and could, in fact, lead to laxity in observing the law.
For the above stated reasons our opinion is that the general rule to be followed is that in every case where an agency goes into closed session because of a subject matter exemption, except in the case involving the disciplining of a student, the procedures of KRS 61.815 must be observed.
Now, to answer your questions.
1. Can a governing body just announce that it is going into a closed session to discuss litigation or must it be more specific?
Answer: We believe that it is sufficient to state that the reason for the closed session is "litigation'. If a suit has already been filed by or against the agency, it may be more satisfying to the public if the body announces that it is going into closed session to discuss the litigation of a named suit, but we believe it is not required by the statute to name the suit since that statute expressly states that notice shall be given of "the general nature of the business to be discussed." We believe that the term "general nature" is satisfied by a term expressing one of the statutory subject matter exemptions such as "litigation", "personnel matter", "collective bargaining" , etc. It is not necessary to be more specific.
2. Following return to regular session, is the governing body compelled to announce that no action will be taken on the matter discussed in the closed session if that be the case?
Answer: KRS 61.815(3) provides: "No final action may be taken at a closed session. "
We believe that the application of this provision allows for latitude dictated by common sense. For example, if the subject of the closed session is the acquisition of real property for a public use and the governing body decides in the closed session that it should acquire by eminent domain a particular piece of property, the whole purpose of the open meeting exception would be defeated if the body had to come back into open session and announce its decision if "publicity would be likely to affect the value of a specific piece of property to be acquired for public use of sold by a public agency. " KRS 61.810(2). Take for another example, a situation where a closed session is held on a personnel matter "to protect the reputation of individual persons", and after discussing charges made against a particular employee the agency decides that the charges are groundless and decides to take no action against the named individual. In such a case a person's reputation could be damaged simply by a statement in open session that he had been under discussion.
The statute says "no final action may be taken in a closed session" but it does not state that some action must be taken in an open session after the closed session. The statute does not mandate that the body must make an announcement of any kind after a closed session.
As our final point in this discussion we call attention to KRS 61.815(4) which provides:
"No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session. "
It is the responsibility of the agency body and of each individual member of the body to see that this provision is obeyed. KRS 61.991 provides a penalty of a fine of not more than $100 upon conviction of a member of a public agency who attends a meeting not held in accordance with the Open Meetings Law.