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 by Anthony R. Trusty in regard to the response of the city of Louisville to his allegations that the city has violated the terms and provisions of the Open Meetings Act.
In a letter to the President of the Board of Aldermen, dated May 2, 1994, Mr. Trusty referred to a special meeting of the Committee of the Whole, held on April 26, 1994, in which the agenda for the meeting was described as, "R-58-4-94 Resolution Approving an Addendum to PSC 94-2785 and PSC 94-3049 for Frank Burke Sr. and Wyatt, Tarrant and Combs."
Mr. Trusty said that immediately upon convening the special meeting the chairman called for a motion to go into executive session to discuss "pending litigation. " Various persons present at the meeting objected because the agenda for the special meeting made no mention of pending litigation. When the closed session ended one of the committee members stated that unspecified pending litigation was discussed during the closed session.
On behalf of the city of Louisville, Christina Heavrin, Esq., replied to Mr. Trusty in a letter dated May 5, 1994, and denied that there had been a violation of the Open Meetings Act. She stated that even if there was an inadvertent violation there is nothing to remedy since no action was taken at that time. Ms. Heavrin further stated that since an agency need not comply with KRS 61.815 when discussing proposed or pending litigation, whether a meeting is a regular or special meeting makes no difference. She confirmed that litigation was discussed in the closed session.
In a letter dated May 11, 1994, and received on May 13, 1994, Mr. Trusty appealed to this office. In part he stated the issue is whether a public agency may close a public meeting to discuss the awarding of a contract for legal services rather than the tactics, strategies, work product, theories or other privileged matter that might be involved in the actual legal proceedings. He also mentioned KRS 61.810(1)(c), the exception to public meetings relative to matters in litigation, and KRS 61.823, the provisions pertaining to special meetings.
This office also received a letter from Ms. Heavrin, dated May 17, 1994, in which she responded to Mr. Trusty's letter of appeal. She stated that the committee's purpose in going into closed session on April 26, 1994, was to discuss pending litigation and not the choice of lawyers or the awarding of a contract. No vote was taken at the closed session nor was there a collective decision, a commitment, or a promise to make a decision. Ms. Heavrin again denied that there was a violation of the Open Meetings Act.
KRS 61.823 deals with special meetings of public agencies and subsection (3) of that statute provides:
The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
The meeting with which we are concerned, conducted on April 26, 1994, was without question a special meeting. Therefore, the committee could only deal with matters set forth in the agenda and the only item on the agenda and the only item on the agenda was "R-58-4-94 Resolution Approving an Addendum to PSC 94-2785 and PSC 94-3049 for Frank Burke Sr. and Wyatt, Tarrant and Combs." Such an item would appear to this office to involve a change or an addition to contracts and not a discussion of pending litigation involving the city of Louisville. See 93-OMD-119, copy enclosed, dealing with KRS 61.810(1)(c), the exception to open and public meetings involving a discussion of pending litigation against or on behalf of the city.
The appealing party has challenged the city's right to go into a closed session relying in part on the city's violation of KRS 61.823(3) and maintaining that "pending litigation" was not the item discussed at that closed session. While the city concedes that the committee went into a closed session to discuss pending litigation it justifies such action by asserting the nonapplicability of KRS 61.815 and the apparent nonapplicability of KRS 61.823.
KRS 61.815 sets forth the requirements that must be followed by a public agency relative to conducting closed sessions. That statute reads as follows:
(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
(b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
(2) Public agencies and activities of public agencies identified in paragraphs (a), (c), (d), (e), (f), but only so far as (f) relates to students, (g), (h), (i), (j), (k), and (1) of subsection (1) of KRS 61.810 shall be excluded from the requirements of subsection (1) of this section.
This office disagrees with the city as to the nonapplicability of KRS 61.815 which sets forth the procedures to be followed when a public agency goes into a closed session. In OAG 80-248, copy enclosed, we dealt with KRS 61.815 and, while we acknowledged that the statute in effect then was somewhat confusing, as is the situation now, we said in part:
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[to] closed session to deal with an excepted subject matter must observe those formalities.
The city and committees created by it are covered by the provisions of the Open Meetings Act (KRS 61.805(1)(c) and (g)). The committee in question, if it were to go into a properly called closed session, would have to follow the procedures set forth in KRS 61.815.
As noted, KRS 61.823, pertaining to special meetings, limits a public agency to discussions and action at a special meeting of only those items listed on the agenda in the notice of the special meeting. This provision applies to all public agencies including, of course, the city of Louisville. The only exception to this provision is where an emergency has arisen but nobody has stated or even implied that the situation here constituted an emergency.
Since the agenda for the special meeting listed as the only item a matter pertaining to a change or an addition to contracts, the city's committee violated the Open Meetings Act when it went into a closed session during that special meeting to discuss matters involving litigation. The city's committee also violated the provisions of the Open Meetings Act by its failure to follow the provisions of KRS 61.815 concerning the requirements to follow in regard to conducting closed sessions.
The city of Louisville may challenge this decision by initiating action in the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General shall be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.