Request By:
Mr. Fred Greene
Logan County Attorney
P.O. Box 494
Clark Building
Russellville, Kentucky 42276
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The fiscal court of your county recently approved a contract with the Housing Corporation of America, looking toward that corporation's constructing and operating a hospital. Under that arrangement, the present county hospital operation would be ended.
One of the magistrates of your fiscal court filed a suit against Logan County in the apparent attempt to prevent the carrying out of the above mentioned contract.
You anticipate that the fiscal court will meet in closed session to discuss various pertinent aspects of the hospital contract and the pending litigation. Here the contract will be considered as an inevitable and central part of the litigation.
Your specific question is whether or not the magistrate, who brought the suit against the county, should be permitted to meet with the other members of the fiscal court in closed session and while the contract and the suit are subjects of discussion and action.
First, under KRS 61.810, all meetings of a quorum of the members of any public agency at which any public 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 certain enumerated items. Subsection (3) of KRS 61.810 expressly provides that "Discussions of proposed or pending litigation against or on behalf of the public agency" are exempt from the open meetings requirement. (Emphasis added).
It is our opinion that the fiscal court can go into a closed session where the sole topic of the discussion is the pending litigation. See Jefferson County Bd. of Ed. v. Courier-Journal, Ky.App., 551 S.W.2d 25 (1977). Further, where the sole topic of discussion relates only to the pending litigation. See KRS 61.815(3), which provides that no final action may be taken at a closed session, however, the exception of KRS 61.810(3) (involving pending litigation) is an exception to the rule that no final action may be taken in a closed session. See OAG 76-643, published, Banks-Baldwin.
In the absence of a constitutional or statutory rule of procedure, the proceedings of a fiscal court are governed by general parliamentary law. Sands, Sutherland Statutory Construction (4th ed.) Vol. 1, § 7.03, p. 263. Thus, since the magistrate in question is pursuing an adversarial role against the county in a suit, he should not be permitted to sit in on a discussion and action session of fiscal court in which strategy action relating to such suit may be taken. He cannot be permitted to sit in on both sides of this litigation. It would make a mockery out of the judicial process. If the magistrate in question shows up at such closed meeting, the fiscal court may, by majority vote, order him to leave the session for the reason given above. See § 60, Robert's Rules of Order, page 538, et seq. Such fiscal court direction to leave the session is enforcible by the fiscal court. The chairman can simply appoint a committee of the other members of fiscal court to escort the offending magistrate to the door.
Under such circumstances as you have outlined, the fiscal court would be acting reasonably in expelling the subject magistrate from the closed meeting, should he appear at such meeting. See § 2, Kentucky Constitution; and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963).