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 Sebree City Council violated the Open Meetings Act when it went into closed session at its August 6, 1998, meeting for the stated purpose of discussing proposed or pending litigation and the future acquisition or sale of real property. For the reasons that follow we find that although the City Council's response to the open meetings complaint was procedurally deficient, its position was legally correct.
On August 12, 1998, Betty P. Catlett, publisher of The Sebree Banner , submitted a written complaint to Mayor Ronald Todd, alleging that the Sebree City Council's closed session discussion of CSX's offer for a 30 x 110 strip of land on the east side of the railroad, at its August 6 meeting, constituted a violation of the Open Meetings Act. Having received no response to her complaint, Ms. Catlett initiated this open meetings appeal on August 19.
Upon receipt of this office's notification of appeal, city attorney Tommy Joe Fridy responded on behalf of the City of Sebree. In a letter to this office, he confirmed that "the matters discussed in the August 6, 1998 closed meeting are permitted under KRS 61.810(1)(b) and KRS 61.810(1)(c)." He explained:
After the council had voted to go into closed session on August 6, 1998 and on our way out of the room, Ms. Catlett and I engaged in a discussion. Ms. Catlett stated that the City could only go into closed session if a suit had actually been filed against the City or if the City was trying to acquire land.
We believe KRS 61.810(1)(c) permits the City council to go into closed session to discuss "proposed or pending litigation against or on behalf of the City". As was stated in the open meeting before the vote to go into closed session, the CSX Railroad had threatened a suit against the City of Sebree to condemn property owned by the City of Sebree. Again, Ms. Catlett stated to me that she believes the statute only permits the City Council to go into closed session if a suit has actually been filed against the City.
We interpret KRS 61.810(1)(b) to permit the City Council to go into closed session to discuss both the future acquisition or sale of real property by the City when the other requirements are met. Again, Ms. Catlett stated to me that she believes the statute only permits the City Council to go into closed session to discuss the City acquiring, not selling property.
The stated purpose for going into closed session was threatened litigation against the City by CSX Railroad and the sale of property. After the City returned from the executive or closed session, the council passed a motion to give the city's attorney authority to negotiate a settlement with the railroad. The results of the settlement negotiations will be brought back to the council for their consideration.
Upon this basis, Mr. Fridy argues that the Sebree City Council properly went into closed session at its August 6 meeting. We agree.
The City's legal position in this matter finds ample support in prior opinions of this office, as well as in case law. With respect to the litigation exception, codified at KRS 61.810(1)(c), this office recently observed:
At KRS 61.810 the General Assembly declared:
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 construe[d] and appl[ied] . . . 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:
Floyd County Board of Education at 923, 924.
98-OMD-105, p. 3, 4.
At pages 3 and 4 of 93-OMD-119, this office articulated a standard for determining the propriety of an agency's reliance on KRS 61.810(1)(c), observing:
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.
See also 92-OMD-1728 (holding that Highland Heights City Council properly conducted closed session to discuss strategy, tactics, and the possible settlement of condemnation proceedings against the city); 97-OMD-96 (holding that Kentucky Employers' Mutual Insurance Authority properly conducted a closed session to discuss whether to appeal an open records decision of the Attorney General); compare 93-OMD-110 (holding 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); 95-OMD-57 (holding 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"); 94-OMD-110 (holding that Owensboro Municipal Utilities improperly conducted closed session to discuss a matter which might cause a private corporation to file a bankruptcy petition, but which did not involve litigation by or against OMU); 98-OMD-105 (holding that Bourbon County Fiscal Court failed to make a sufficient showing that it properly conducted closed session to discuss pending litigation) .
Resolution of 98-OMD-105 turned on the Bourbon County Fiscal Court's failure to "shed any light on the general nature of the proposed or pending litigation anticipated or the immediacy of the threat of litigation." 98-OMD-105, p. 6. In the appeal before us, Mr. Fridy describes, in sufficient detail, the general nature of the underlying threat of litigation, namely CSX's threat to sue the City of Sebree to condemn property owned by the City. Contrary to Ms. Catlett's apparent belief, a lawsuit need not be pending in the courts before an agency can properly invoke KRS 61.810(1)(c) to go into closed session to discuss strategy and tactics so long as there have been "direct suggestions of litigation conditioned on the occurrence or nonoccurrence of a specific event." OAG 91-141, p. 3. Here, it appears that CSX will file suit to condemn property owned by the City of Sebree if the City does not agree to sell the property to CSX. The possibility of litigation is sufficiently great to warrant invocation of KRS 61.810(1)(c).
Insofar as the City Council's discussion of litigation strategy was inextricably linked to its discussion of the sale of the property adjacent to the railroad, we believe that the City of Sebree also properly relied on KRS 61.810(1)(b) to go into closed session at its August 6 meeting. That provision authorizes public agencies to conduct closed sessions to deliberate:
on the future acquisition or sale of real property by [the] agency , but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by [the] public agency [.]
(Emphasis added.) In construing this provision, the Attorney General has observed:
Only when a public agency is discussing a specific piece of property relative to whether the agency will buy or sell that property and the discussion if made public would likely affect the price of that property, can the matter be discussed in a closed session. Confidentiality is only permissible when the public interest will be directly affected financially.
OAG 80-350, p. 3; see, e.g., 93-OMD-56 (holding that Board of Commissioners of the Allen County War Memorial Hospital did not violate the Open Meetings Act when it went into closed session to deliberate the proposed sale of the hospital building and the property on which it was located since publicity would likely affect the value); 94-OMD-22 (holding that Anderson County Board of Education properly conducted closed session to discuss the acquisition of property since publicity would be likely to affect the property's value); compare 95-OMD-57 (holding that the Lexington-Fayette Urban County Government improperly invoked KRS 61.810(1)(b) since LFUCG was obligated under memorandum of understanding with the state to reimburse the state for property acquired by the state on a particular date and at a particular price).
In the appeal before us, the record supports the City's position that it was warranted in conducting a closed session discussion of CSX's offer to purchase the land adjacent to the railroad since public discussion of the offer was likely to affect the price of the property. Ultimately, of course, the City Counsel determined, in open session, to negotiate a settlement with the railroad. The Sebree City Council's actions were, in all material respects, consistent with the Open Meetings Act.
We note, in closing, that the City of Sebree's failure to respond in writing, and within three business days, to Ms. Catlett's complaint, constituted a violation of the Open Meetings Act. KRS 61.846(1) provides, in relevant part:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency'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 public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Although it has explained its position to this office, the City has not responded to Ms. Catlett's complaint to date. We urge the Sebree City Council to review the cited provision to insure that future responses conform to the Open Meetings Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.