Request By:
IN RE: Pat Schneider/Herbert Kenter III
Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal from the written response of Herbert Kenter III, the mayor of the city of Highland Heights. Ms. Pat Schneider has requested that the Attorney General review the mayor's responses to her questions pertaining to a meeting of the city council of the city of Highland Heights held on September 10, 1992.
In a letter to the mayor, dated November 4, 1992, Ms. Schneider alleged that the city council's meeting of September 10, 1992 violated the Open Meetings Act. She requested in part that the city council "redo the procedure properly in an open meeting of city council." Ms. Schneider's letter referred to five violations of the Open Meetings Act which are summarized as follows:
1. The first violation was when the Bertram brothers were called into the closed session and told of the council's decision regarding the sewer line crossing their property.
2. The second violation occurred when the Bertram brothers were dismissed and the meeting was not reopened to let the citizens know what decisions had been made in the closed session.
3. The third violation occurred when additional city business was conducted in the closed session.
4. The fourth violation was "introducing an unidentified person into closed session. "
5. The fifth violation occurred when city business was conducted past midnight.
The mayor responded to Ms. Schneider in a letter dated November 10, 1992 and his responses are summarized as follows:
1. The Bertram brothers were called into the executive session of the council. They were called in to discuss the litigation between themselves and the city. Litigation is a proper subject for an executive session.
2. There was no violation for not discussing in an open meeting the decision of counsel in an executive session with regard to ongoing litigation.
3. The mayor does not believe that any additional business was discussed on the night in question. The closed session was confined to matters pertaining to litigation.
4. The person invited into the executive session was involved in the litigation that was being discussed at that time.
5. The discussions relative to the litigation did extend past midnight. There were no violations of the Open Meetings Act as no action was taken by the city.
In an attempt to gain additional information relative to the meeting in question the undersigned Assistant Attorney General talked by telephone on the afternoon of November 18, 1992 with Steven Franzen, Esq., the city attorney for the city of Highland Heights. He has supplied some additional facts which will, hopefully, clarify the determinations made in this decision.
Having analyzed the available facts and before applying the applicable principles and statutory provisions to those facts the city's attention is directed to KRS 61.846(3). That subsection provides that the city's response, denying in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the city's denial and a brief explanation of how the statute or statutes apply.
KRS 61.810(1)(c) states that discussions of proposed or pending litigation against or on behalf of the public agency may be held in a closed or executive session. The city attorney has advised that the Bertram brothers are involved in a condemnation proceeding against the city. Therefore the city properly invoked the provisions of KRS 61.810(1)(c) when it met in a closed session to discuss matters pertaining to ongoing litigation. See OAG 91-141, copy enclosed, dealing with the litigation exception which at that time was codified as KRS 61.810(3).
Since the city council properly invoked the litigation exception and met in a closed session to discuss specific litigation involving the city, the city was not legally obligated to reveal what transpired at that closed session relative to its strategy, tactics, possible settlement and other matters pertaining to that particular case.
Both the mayor's written response and the city attorney's conversation with the undersigned indicate that only matters pertaining to litigation were discussed at the closed session of the city council. Ms. Schneider has presented no evidence in this regard to contradict those assertions. The city attorney stated that the closed session involved two separate items relative to litigation against the city.
The person invited into the executive session at some point after the council had concluded its discussion with the Bertram brothers relative to their litigation involving the city was a paving contractor. The city attorney states that the city was invoking the litigation exception to the Open Meetings Act in this matter because either the paving contractor or his attorney or both of them had threatened the city with litigation over work done by the paving contractor for the city.
The city properly invoked the litigation exception because the threat of a lawsuit by the company against the city in the situation involved here was more than a "remote" possibility of litigation involving the city. In OAG 91-141, at page three, this office said in part:
KRS 61.810(3) creates an exception to the Open Meetings Law for, 'Discussions of proposed or pending litigation against or on behalf of the public agency. ' This Office has previously opined that this exception is intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to the litigation. OAG 78-227. Further, we have indicated that the terms 'proposed or pending' should not be broadly construed to authorize a closed session when the possibility of litigation is remote. In OAG 84-240 we addressed this concern, noting that where there had been 'direct suggestions of litigation' conditioned on the occurrence or nonoccurrence of a specific event, the possibility of litigation was sufficiently great to warrant the agency's invocation of KRS 61.810(3).
Again, note that as of July 14, 1992, KRS 61.810(3) has been recodified as KRS 61.810(1)(c).
While KRS 61.820 provides in part that meetings of public agencies shall be held at specified times and places which are convenient to the public, there is no provision in the Open Meetings Act prohibiting meetings after a certain hour. While a late night council meeting may be inconvenient to the public in many instances, other than the adjournment of the meeting, the late night activity in this situation consisted of a closed session pertaining to two items of litigation involving the city.
In meeting the statutory obligation imposed upon the Attorney General by KRS 61.846(2) to determine if the public agency violated the provisions of the Open Meetings Act, it is our decision that the city did not violate the Open Meetings Act with respect to the five allegations raised by Ms. Schneider concerning the meeting held on September 10, 1992.
Ms. Schneider may challenge this decision by filing an appeal with the appropriate circuit court within 30 days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.