Request By:
Mr. Ed Severs
The Daily News
P.O. Box 929
Bowling Green, Ky. 42101
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
This office is in receipt of your request for an opinion under the Open Meetings law, KRS 61.805 et seq.
It appears that your concern arises from a closed session held during a public meeting of the Bowling Green-Warren County Cable Authority on April 30, 1984. You state that there was an apparent disagreement between the Authority and Storer Communication concerning whether the Authority could regulate the rates of the cable television company. After two hours of open meeting, Commissioner Elwood Janes moved to go into closed session, citing the "possibility of litigation." Upon returning to open session, you indicate that there was no discussion of a lawsuit. You specifically ask whether the closed session was proper and what topics the Authority could discuss in closed session.
It is the opinion of this office that the nature and notice of the closed session was proper under the Open Meetings law. Closed sessions are authorized for "discussions of proposed or pending litigation against or on behalf of the public agency." KRS 61.810(3). KRS 61.815(1) requires that notice be given in the open meeting of the nature of the business to be discussed in the closed session. We have stated that "litigation" is sufficient notice. OAG 80-248. Although we can understand your concern over the general use of "possible litigation" as it was used herein, the context of the meeting indicates that litigation was "probable" or "pending." City Attorney Dixie Satterfield has informed this office that prior to the open meeting Storer Communication made direct suggestions of litigation. Mr. Satterfield additionally stated that Storer made comments and statements at the open meeting suggesting litigation should the Authority not grant the proposed rate increase. Mr. Satterfield also attempted to revise Commissioner Janes' motion regarding "possible litigation" to "proposed or pending litigation, " although apparently this was unsuccessful. Thus it appears that the nature of the closed session was proper and the notice of said session sufficient.
It is also our opinion that the Authority properly limited discussion during the closed session to the topic of litigation against Storer Communication. KRS 61.815(4) requires that no matters other than those publicly announced prior to convening the closed session may be discussed in closed session. As we stated in OAG 80-248, it is the responsibility of each agency member to adhere to this provision. Attendance at a meeting not held in accordance with the Open Meetings law can merit a fine of up to $100 upon conviction. KRS 61.991. Mr. Satterfield assures us that litigation between the Authority and Storer Communication was in fact discussed at the closed session. Although KRS 61.815(3) provides that no final action may be taken at a closed session, the statute does not mandate that any action be taken in open meeting following the closed session or that the agency make an announcement of any kind.
It is therefore the opinion of the Attorney General that the closed session held during the April 30, 1984 meeting of the Bowling Green-Warren County Cable Authority in which litigation with Storer Communication was discussed was proper regarding the subject matter, the notice, and the topic actually discussed.