Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Bourbon County Fiscal Court violated the Open Meetings Act when it went into closed session during its May 28, 1998, regular meeting for the stated purpose of discussing pending litigation. For the reasons that follow, we find that the Fiscal Court violated the Open Meetings Act by failing to establish that its actions were authorized under the "pending litigation" exception to the Act. KRS 61.810(1)(c).
On June 3, 1998, Lynne Wornall, editor of The Bourbon Times , submitted a complaint to the Bourbon County Fiscal Court. Ms. Wornall complained that on May 28, the fiscal court improperly conducted a closed session to discuss "potential litigation." She noted that upon reconvening, the fiscal court "decided to ask the road committee to 'look into' the matter of Squires Road-a private lane that has apparently been maintained by the county for several years." It was Ms. Wornall's position that:
although the situation may be been [sic] embarrassing to the Bourbon County Fiscal Court, it in no way represented a legal threat. The citizens group that uncovered the Squires Road problem, headed by Trudy Reed and Theresa Evans, never threatened or anticipated legal action.
In closing, Ms. Wornall requested that the fiscal court "correct the violation."
On behalf of the Bourbon County Fiscal Court, County Judge/Executive Charles R. Hinkle responded to The Bourbon Times' complaint. Judge Hinkle stated that the decision to go into closed session was "based upon the information provided to this office and to the County Attorney." Continuing, he observed:
It was believed that considering all of the circumstances that the county was threatened with litigation. It was believed that in light of the threat of litigation from several quarters, not one, that an executive session was appropriate.
In an attempt to correct "some misstatements and allegations," he noted that no action was taken when the fiscal court reconvened in open session, but that the fiscal court "then took on other business." Among the topics discussed was a proposal that the county finance the construction of a road on private property. Judge Hinkle commented:
During the course of a rather extended discussion, [Magistrate Brown], discussed [the] problem in conjunction with Squires Lane, Lail Lane, Cemetery Road, and another road in the county. The contention was that these were roads on private property. Further, since they were being maintained by the county, [the proposed private road] should also be maintained. After the discussion, the Court directed the road committee to look into the situation.
Judge Hinkle expressed the view that "there are no specific statutes or cases that define the scope of the 'pending litigation' exception[, but it was his] understanding that anything that falls within the attorney-client relationship would fall within this exception." Moreover, he observed, "the litigation need not be currently pending and may be merely threatened."
It is the opinion of this office that the Bourbon County Fiscal Court fails to make a sufficient showing that it properly went into closed session during its May 28, 1998, regular meeting to discuss pending litigation. In defending its position that the closed session was proper under KRS 61.810(1)(c), the fiscal court omits any reference to the general nature of the business to be discussed, thereby frustrating the intent of the Open Meetings Act. Absent proof to the contrary, we find that the fiscal court improperly relied on KRS 61.810(1)(c) to authorize its closed session.
That intent is clearly expressed in KRS 61.800, which provides:
The basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
As a means of implementing this policy, at KRS 61.810 the General Assembly declared:
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 the agency, shall be public meetings, open to the public at all times[.]
Recognizing that there are extraordinary circumstances which may warrant a public agency in conducting its business in a closed session, the General Assembly has carved out a number of exceptions to this general rule. Among those meetings which are excepted from the general rule of openness are meetings involving "discussions of proposed or pending litigation against or on behalf of the public agency. " KRS 61.810(1)(c). This, along with the other eleven exceptions to the Open Meetings Act "must [be] narrowly construed and applied . . . so as to avoid improper or unauthorized closed, executive or secret meetings."
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997).
In Floyd County Board of Education v. Ratliff , the Kentucky Supreme Court construed KRS 61.810(1)(c), reasoning:
The drafters of the legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics. Obviously, anything that would include the attorney-client relationships would also fall within this exception. The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply "any time the public agency has its attorney present" or where the possibility of litigation is still remote. See Jefferson County Board of Education v. The Courier-Journal, Ky.App., 551 S.W.2d 25 (1977). As properly noted in Jefferson County Board of Education, supra, the matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of "everything tangential to the topic."
Floyd County Board of Education at 923, 924.
Numerous opinions of the Attorney General support this view. In OAG 78-227, this office held that KRS 61.810(1)(c) is intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to litigation. However, we have warned that the terms "proposed or pending" should not be so broadly construed as to authorize a closed session when the possibility of litigation is remote. OAG 84-240; OAG 91-141. Applying these general principles to a series of appeals arising under KRS 61.846(2), the Attorney General has held that the Highland Heights City Council properly conducted a closed session to discuss strategy, tactics, and the possible settlement of condemnation proceeding against the city (92-OMD-1728); that the board of trustees of the Louisville Firefighters Pension Fund improperly conducted a closed session to discuss litigation which did not involve the Pension Fund but instead involved the similarly situated Policemen's Pension Fund (93-OMD-110); that the Lexington-Fayette Urban County Government improperly conducted a closed session to discuss a dispute between the city and state concerning property known as the "Ben Snyder Block" (95-OMD-57); and that Kentucky Employers' Mutual Insurance Authority properly conducted a closed session to discuss whether to appeal an open records decision of the Attorney General, but improperly made the final determination to appeal the decision in the closed session (97-OMD-96).
Based on these decisions, the following guidelines have been established:
When the public agency has become a party plaintiff or defendant in a lawsuit, when a public agency has been threatened with litigation, or when the chance of litigation involving that agency is more than a remote possibility, the agency can then legally and properly invoke the exception set forth in KRS 61.810(1)(c). The public agency can at that time discuss in a closed session such matters as strategy, tactics, possible settlement and other matters pertaining to that case or that anticipated or probable case.
93-OMD-119, p. 3, 4
Upon receipt of an open meetings complaint alleging a violation of the Act and a determination that no violation occurred, KRS 61.846(1) requires a public agency to issue a response setting forth "the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply." In addition, 40 KAR 1:030 Section 2 provides that in the event of an appeal of the agency's denial, "the Attorney General shall send notice to the public agency that a complaint has been filed . . . [and] the agency may provide the Attorney General with a written response to the issues raised in the complaint." This is the record upon which the Attorney General relies in rendering his decision. Although the courts have never addressed this particular agency duty in the context of an open meetings complaint, in
Edmondson v. Alig, Ky.App., 926 S.W.2d 856 (1996), the Kentucky Court of Appeals held that in responding to an open records request, the agency's duties are clear. Analyzing language found in KRS 61.880(1) that is virtually identical to language found in KRS 61.846(1), the court held:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. Therefore, we cannot agree . . . that [a] limited and perfunctory response to [a] request even remotely complie[s] with the requirements of the Act-much less than it amount[s] to substantial compliance.
Id. at 858. It is clearly in the agency's best interest to provide particular and detailed information in response to an open meetings complaint as well as an open records request.
The Bourbon County Fiscal Court had two opportunities to explain its decision to conduct a portion of its May 28 meeting in a closed session. Both Judge Hinkle and County Attorney Brady responded on behalf of the Fiscal Court. Neither response, however, shed any light on the general nature of the proposed or pending litigation anticipated or the immediacy of the threat of that litigation. From their responses we learn little more than that the litigation does not involve the issue of Squires Road, and that it was threatened "from several quarters, not one. . . ." As noted above, an agency is authorized to discuss its preparation, strategy, or tactics relative to the threatened litigation in a closed session pursuant to KRS 61.810(1)(c), but that provision does not authorize it to maintain absolute secrecy as to the general nature of that litigation. How else can the public, this office, and the courts evaluate the propriety of the agency's actions? Clearly, in the series of open meetings decisions cited above, the public agencies discharged their duty under KRS 61.846(1) by citing the exception supporting their denials of the complaints, and explaining how the exception applied to the disputed closed session.
For these reasons, we conclude that the actions of the Bourbon Fiscal Court violated the Open Meetings Law. Insufficient proof has been presented to this office that the Fiscal Court conducted a closed session at its May 28, 1998, meeting to discuss proposed or pending litigation to permit us to affirm the fiscal court's actions.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.