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 Somerset Planning and Zoning Commission violated the Open Meetings Act when it went into closed session at its July 27, 1999, meeting. For the reasons that follow, we find that the Commission violated the Act by failing to comply with the procedural requirements set forth at KRS 61.846(1), and by failing to establish that its actions were authorized under KRS 61.810(1)(c), the "pending litigation" exception, or any other exception to the Open Meetings Act.
On July 29, 1999, William Barnett submitted a complaint to the Somerset Planning and Zoning Commission. Mr. Barnett complained that on July 27, the Commission improperly conducted a closed session "without a motion being made and carried in open session. " In addition, he complained that the Commission failed to cite the specific exception authorizing the closed session, noting that the Commission could not legally conduct a closed session discussion of "site plans or conditional use permits in general, or the Lovins site plan in particular." In closing, Mr. Barnett requested that the Commission discuss, in an open session at a future meeting, those matters discussed in the July 27 closed session, and that he "be notified by certified mail of this future meeting at least two weeks in advance." Finally, he demanded that "any and all action taken as a result of this improperly called closed session, including the vote taken immediately following this closed session, be declared null and void." Having received no response to his complaint, Mr. Barnett initiated this open meetings appeal.
Upon receipt of this office's notification of open meetings appeal, Daniel G. Yeast responded on behalf of the Planning and Zoning Commission. He explained that Mr. Barnett's appeal arises from an ongoing dispute "concerning a local citizen's attempt to gain a conditional use permit. " Mr. Yeast continued:
The citizen approached the Planning and Zoning Commission, on July 27, 1999 (the date of the closed meeting) for a site plan approval for the apartment complex that he desires to erect. Mr. Barnett and a group of citizens (along with their attorney) were present in opposition. [Footnote omitted.]
As this matter had been in litigation and inevitably will end up in litigation once again, an executive session (closed meeting) was held in an effort to explain the Court's last ruling to the Commission. Nothing other than the legal posture of the case was discussed. . . . The Board was concerned that they might deviate from the Circuit Court's last ruling, therefore, the legal posture of the case was discussed in a closed session.
Mr. Yeast characterized Mr. Barnett's appeal as "frivolous, without merit, and . . . meant solely [to harass] the City of Somerset." For these reasons he urged the Attorney General to dismiss Mr. Barnett's appeal, sanction him for his conduct, and require him to pay reasonable attorney fees for the Commission's defense of this action.
We find that there is inadequate proof in the record to support the Planning and Zoning Commission's position that it properly conducted a closed session discussion of pending litigation at its July 27 meeting. Moreover, we find that there is no proof in the record to support the Commission's position that Mr. Barnett's appeal was filed solely for purposes of harassment.
We begin by noting that the Somerset Planning and Zoning Commission's failure to respond in writing, and within three days, to Mr. Barnett's complaint, constituted a violation of the Open Meetings Act. KRS 61.846(1) provides, in 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. . . . 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 the Commission has explained its position to this office, it has not responded to Mr. Barnett's complaint to date. The Commission is not relieved of this legal duty simply because it questions the merits, and is suspicious of the motives, which underlie the complaint. We urge the Somerset Planning and Zoning Commission to review the cited provision to insure that future responses conform to the Open Meetings Act.
Turning to the substantive issues in this appeal, we refer the parties to 99-OMD-94 in which this office observed:
Fundamental to an analysis of the propriety of a public agency's conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:
In interpreting this provision, Kentucky's courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," E. W. Scripps Co. v. City of Maysville, Ky.App., 750 S.W.2d 450 (1990) cited in Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), and that:
Id. "The exceptions to the open meetings laws," the Court concluded, "are not to be used to shield the agency from unwarranted or unpleasant public input, interference or scrutiny." Id. at 924. Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to "open government openly arrived at." Maurice River Board of Education, v. Maurice River Teachers, 455 A2d 563, 564 (N.J. Super. Ch. 1982) paraphrasing Woodrow Wilson.
99-OMD-94, p. 3-4. It is the opinion of this office that the Planning and Zoning Commission did not comply with the strict letter of the law when it went into closed session at its July 27 meeting, and that its reliance on KRS 61.810(1)(c) to belatedly justify its actions was misplaced.
Mr. Barnett complains, and Mr. Yeast does not refute, that the Commission went into closed session at its July 27 meeting without "a motion being made and carried in open session, " and without citing the specific exception which authorized the closed session. KRS 61.815 provides that 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.
In construing this provision, the Kentucky Supreme Court has observed:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting.
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997).KRS 61.815 is thus aimed at promoting the "express purpose" of the Open Meetings Act, namely, "to maximize notice of public meetings and actions." Id. at 923; see also, 94-OMD-78 (holding that agencies which are not exempt per se from the requirements of the Open Meetings Act must observe these formalities before going into a closed session) ; 95-OMD-92 (holding that KRS 61.815 "clearly require[s] that certain things be done in a regular, open, and public session before the public agency can go into a closed or executive session) .
The Commission offers no proof, such as minutes of its July 27 meeting, to refute Mr. Barnett's assertion that it did not observe the necessary formalities for conducting a closed session. In the absence of such proof, we conclude that its actions constituted a violation of the Open Meetings Act.
We further find that the Commission belatedly presents insufficient proof that is July 27 closed meeting was conducted for the purpose of discussing proposed or pending litigation. Accordingly, we find that its reliance on KRS 61.810(1)(c) to justify the closed session was misplaced. 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 relationship 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.
In the appeal before us, the record does not support the Commission's position that it was justified in conducting a closed session discussion of the controversial conditional use permit. Mr. Yeast states that "this matter has been in litigation and inevitably will end up in litigation again." Somewhat cryptically, he asserts that the Commission "was concerned that [it] might deviate from the Circuit Court's last ruling [and] therefore the legal posture of the case was discussed in closed session. " He does not maintain that the Commission is currently a plaintiff or defendant in a lawsuit, or that new litigation has been threatened. The fact that the Commission was once in litigation, and "will end up in litigation again," does not satisfy the standard established in Ratliff , above, and in 93-OMD-119. Although it is unclear what Mr. Yeast means by a discussion of "the legal posture of the case," we do not believe that it can be equated to a discussion of preparation, strategy, or tactics relating to proposed or pending litigation. We therefore conclude that the closed session was improper.
In closing, we remind the Commission that whatever the outcome of an open meetings appeal, this office is not empowered to sanction a party or impose attorney fees. As we noted in 93-OMD-81, "The role of the Attorney General's Office in an appeal under the Open Meetings Act is rather limited . . . and the relief requested . . . can only be granted by a circuit court." 93-OMD-81, p. 2; see also 93-OMD-49. The Somerset Planning and Zoning Commission should bear these observations in mind in future open meetings disputes.
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.