Request By:
Mike Farrell
City Editor
The Kentucky Post
421 Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion interpreting the Kentucky Open Meetings Law, KRS 61.805 to 61.850. You give the following statement of facts:
"The Boone Fiscal Court, at a regular meeting on December 7, 1982, went into executive session after a unanimous vote to discuss the possible sale of Woodspoint Nursing Home, which is owned by the Boone County Public Properties Corp. Invited to sit in on the executive session were those members of the Board of Directors of the Woodspoint Nursing Home who were in attendance, and attorneys representing firms interested in purchasing the nursing home. The members of the Board of Directors are appointed by that Board.
"Reporters attending the meeting of the fiscal court objected to the executive session under the terms of the Open Meeting Statutes, but the fiscal court overruled those objections.
* * * * *
"At the conclusion of the fiscal court executive session, the regular meeting was reopened and the judge-executive read a statement that the fiscal court had decided not to sell the nursing home. "
Your first question is whether the fiscal court properly convened a closed session on the stated subject and allowed the board of directors of the nursing home and representatives of prospective purchasers of the nursing home property to attend the closed session.
The pertinent statutory provision is KRS 61.810(2) which allows a closed session to discuss --
"Deliberations on the future acquisition or sale of real property by public agency, but only when publicity would tend to affect the value of the specific piece of property to be acquired for public use or sold by a public agency. "
First, we believe that it was permissible for the fiscal court to allow the members of the board of directors of the nursing home to attend the closed session. In OAG 77-560 we said: "Any person who the board believes can contribute information or advice on the subject matter under discussion may be invited into the executive session but should remain only so long as is necessary to make his contribution to the discussion." We believe that there was an obvious good reason for allowing the board of directors of the nursing home, the property of which is under consideration as to whether it will be sold, to attend the closed session.
On the other hand, we believe that it was not proper to allow the representatives of prospective buyers of the property to attend the closed session. There could well be prospective buyers other than the three represented by attorneys and the consideration of the sale of public property should not be limited to negotiations with a limited number of prospective purchasers. In this particular case the presence and the input of the representatives of the prospective buyers may have influenced the decision of the fiscal court not to sell the property and may have been in the public interest; however, we believe that the Open Meetings Law does not permit this type of closed negotiations to decide whether the property is surplus to public purpose and whether it should be sold or retained in the public interest.
You also complain that you believe that the announcement by the county judge-executive that the fiscal court had decided not to sell the property was in violation of KRS 61.815(3) which provides: "No final action may be taken at a closed session. "
It was proper for the fiscal court to decide in its closed session not to sell the property but, in order to be in technical compliance with the Open Meetings Law it should have taken a vote on the question in an open session after the closed session. The action which the fiscal court took was "final action" and the fiscal court should have observed the formality of taking such final action in an open session.