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 Pulaski County Fiscal Court violated the Open Meetings Act at its Tuesday, October 10, 2000, meeting, by conducting an executive session for the stated purpose of discussing pending litigation by admitting one media representative to the executive session, but excluding all other media representatives as well as the public generally. For the reasons that follow, we find that the fiscal court violated the Open Meetings Act by failing to establish that its discussions were authorized under the "pending litigation" exception to the Act, and by failing to offer sufficient justification for the admission of a single media representative and the exclusion of all others, as well as the public generally.
On October 11, 2000, Commonwealth Journal news editor Carol Coffey submitted a written complaint to Darrell BeShears, Pulaski County Judge/Executive and presiding officer of the fiscal court. Ms. Coffey challenged the October 10 closed session, complaining that "during that closed session, the court allowed David Carr, with the King of Kings Radio Network, to be present and give the court a tape and transcript which is allegedly from one of the attorneys with Liberty Counsel." Ms. Coffey objected to Mr. Carr's presence on the basis that he is not a party to the pending litigation, but was permitted to attend the closed session, listen to the tape, and review the transcript. It was her position that any claim of attorney/client privilege was waived by Mr. Carr's presence.
In a response dated October 13, 2000, Judge BeShears denied that the fiscal court's actions violated the Open Meetings Act arguing that the "pending litigation" exemption permitted the Fiscal Court's action. This appeal followed.
It is the opinion of this office that the Pulaski Fiscal Court fails to carry its burden of proof by making a sufficient showing that it properly went into closed session during its October 10 meeting to discuss "matters commonly inherent to litigation, such as preparation, strategy, or tactics. "
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). In defending its position that the closed session was proper under KRS 61.810(1)(c), Judge BeShears asserts that the tape contained legal advice from the Liberty Counsel that was protected from disclosure to third persons by the attorney-client privilege, but acknowledges that Mr. Carr, a third person, was present while it was played.
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." Ratliff , above at 923.
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. 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."
Ratliff 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-119); 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
Thus, although a public agency is entitled to conduct a closed session discussion of preparation, strategy, or tactics relating to pending litigation, including anything that would involve the attorney client relationship, under authority of KRS 61.810(1)(c), this exception does not extend to discussion of "everything tangential to the topic." Mr. Carr is not a party to the litigation, is not a lawyer, or employee of a lawyer, employed by the Fiscal Court or Liberty Counsel. His receipt of "legal advice" from the Liberty Counsel, along with his presence during the closed session meeting of the fiscal court, was inconsistent with invocation of the attorney-client privilege and a confidential discussion of strategy and tactics, regardless of the constraints that were placed upon him relative to subsequent discussion of what he heard and saw. The protections afforded by the attorney-client privilege and the "pending litigation" exception were defeated by Mr. Carr's presence.
This office has recognized that, on occasion, a person who is not a member of a public agency may be invited to attend a closed session if he or she "can contribute information or advice on the subject matter under discussion . . . but should remain only so long as is necessary to make his [or her] contribution to the discussion." OAG 77-560, p. 3. For example, in OAG 80-247 the Attorney General affirmed the Christian County Board of Education's decision to invite a select committee into its closed session authorized by KRS 61.810(1)(f) to take part in interviews and discussions with applicants for the position of superintendent. Similarly, in OAG 83-61 we held that the Board of Directors of a county nursing home whose sale was being contemplated could properly be invited to attend a closed session of the fiscal court conducted under authority of KRS 61.810(1)(b), since the board members could contribute advice and information on the subject under discussion. See also, 92-OMD-1728. Underlying each of these decisions was the recognition that:
When an agency . . . goes into closed session, according to proper procedure, it may allow only persons in the closed session as long as there is a reason for their being there. A public agency may not act in an arbitrary manner in conducting a closed session and may not select some persons to attend and some to be kept out without having a reason for its actions. Section 1 of the Bill of Rights of Kentucky provides that all men are free and equal. Section 2 provides that absolute and arbitrary power over the life, liberty and property of free men exists nowhere in a Republic, not even in the largest majority. This section enjoins arbitrary action by any public agency or public official. Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). An action is "arbitrary" when it is not based on reason. A public agency should not invite certain people to be merely spectators in a closed session and at the same time bar certain other people from being spectators. For example, an agency may not bar all newspaper reporters while at the same time it allows other individuals to observe the meeting. Johnson v. Simpson, Ky., 433 S.W.2d 644 (1968).
In order to avoid arbitrariness and to conform to reasonable standards, we believe that a person who is brought into a closed session for a purpose should remain in the session only as long as the purpose is being served. If a person is a witness on a certain matter, he should leave the closed session after he has testified. In inviting non-members into a closed session, we believe that the agency has the duty to explain why such persons are invited into the session.
OAG 77-560, p. 2.
The Pulaski Fiscal Court offers no justification for Mr. Carr's presence in its closed session. Assuming for the sake of argument that the closed session were authorized by KRS 61.810 (1)(c), there is no evidence before us that Mr. Carr's delivery of the tape and transcript required him to enter into, or remain in, the closed session. In inviting Mr. Carr into its closed session, the fiscal court improperly engaged in the practice of selective admission, and the verbal restrictions it placed upon him did not vitiate this error. We therefore conclude that the Pulaski Fiscal Court violated the Open Meetings Act in the course of its October 10 meeting.
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 proceedings.