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 Hopkins County Fiscal Court violated the Open Meetings Act when it went into closed session pursuant to KRS 61.810(1)(b) and (g) at its February 14, 2001, special meeting "to discuss cost estimates for remodeling the old Post Office building" with architect Mike Burton. For the reasons that follow, we find that the fiscal court's reliance on the cited exceptions was misplaced, and that its closed session discussion of cost estimates for the renovation project was not authorized by law.
On February 20, 2001, Elbert A. Powell submitted a written complaint to Hopkins County Judge/Executive Richard L. Frymire in which he alleged that the closed session discussion constituted a violation of the Open Meetings Act. Although Mr. Powell did not propose specific remedial measures, he requested that the fiscal court "explain [its] reasoning."
In a response dated February 27, 2001, 1 Judge Frymire denied that the fiscal court violated the Open Meetings Act. He maintained that KRS 61.810(1)(b) and (g) authorize a closed meeting when "publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency. " Judge Frymire observed:
To publicize the architect's estimates of the cost of remodeling would certainly influence the bid of an interested contractor. Additionally, the scope of the project could change after hearing the cost of the project as initially designed by the architect. Our goal was to protect the taxpayer from premature publicity regarding estimated costs which publicity would likely the affect the cost of the remodeling project.
Shortly thereafter, Mr. Powell initiated this appeal. 2
In a supplemental response directed to this office following commencement of the appeal, Judge Frymire elaborated on the fiscal court's position. Relying on KRS 61.878(1)(c)1., KRS 61.878(1)(f), KRS 61.878(1)(i), and KRS 61.878(1)(j), in addition to KRS 61.810(1)(b) and (g) he explained:
Similarly, K.R.S. 61.878(j) exempts preliminary recommendations and memoranda in which opinions are expressed. Mr. Barton's expression of his opinions as to cost would certainly influence the amount of a contractor's bid. Hopkins County is entitled to a level playing field.
If the complainer cannot, under K.R.S. 61.878(c)(f)(i) and (j), obtain a written copy of a cost estimate, then he should not be able to do an end run to obtain the information orally under K.R.S. 61.810.
Judge Frymire furnished this office with an affidavit in which he stated that he scheduled the meeting with the architect "to hear cost estimates for the remodeling of the old Post Office building," and that said meeting was "noticed to the public and press as to time and place." 3 Further, he stated, prior to retiring to executive session the fiscal court announced that the discussion would be conducted behind closed doors "because publicizing the cost estimates would likely affect or influence the amount of the bids to be offered by interested contractors. " In support, he again cited KRS 61.810(1)(b) and (g). Respectfully, we disagree with this analysis.
Having considered the arguments advanced by the Hopkins County Fiscal Court in support of its closed session discussion of cost estimates for the remodeling of the old Post Office building, and bearing in mind that the 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), we find that the closed session discussion was not authorized by KRS 61.810(1)(b) and/or (g). 4
KRS 61.810(1)(b) excludes from the general rule of openness:
Deliberations on the future acquisition or sale of real property by a public 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 a public agency [.]
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 80-530, 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); 98-OMD-147 (holding that City of Sebree properly relied on KRS 61.810(1)(b) in conducting closed session discussion of sale price offered in settlement negotiations); 00-OMD-64 (affirming Henderson City Commission reliance on KRS 61.810(1)(b) to conduct closed session discussion of the purchase of the Peabody Building where proposed purchase price had not been publicly disclosed prior to meeting, and open discussion would have compromised the public's financial interests) ; see also, 00-OMD-146; compare 95-OMD-57 (holding that the Lexington-Fayette Urban County Government improperly invoked KRS 61.810(1)(b) since LFUCG was obligated under a previously released 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); 99-OMD-104 (holding that Marion City Council was not justified in conducting a closed session discussion of the purchase of property on the basis of KRS 61.810(1)(b) when a purchase price had been agreed to, budgeted for, and publicized).
In both 95-OMD-57 and 99-OMD-104, this office was unable to discern how the price of the property at issue could be affected by public discussion since the terms of the purchase had been previously disclosed. Under these circumstances, we concluded that confidentiality could afford no material advantage to the public interest. In the appeal before us, the property under discussion (the old Post Office building) has already been acquired, and the discussion focused not on its purchase or sale, but on its renovation and/or remodeling. The fiscal court's argument ignores the first condition of exemption (1)(b), that the agency be engaged in deliberations on the future acquisition or sale of real property. By its express terms, KRS 61.810(1)(b) does not apply to discussions concerning renovation and/or remodeling of previously acquired real property. The fiscal court's liberal interpretation of the exception to include renovation and remodeling is not supported by the language of the exception or the legislative statement of policy codified at KRS 61.800. That policy is premised on the notion 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 by law shall be strictly construed. " (Emphasis added.) Although similar financial interests might be implicated by public disclosure of the cost estimates for remodeling, the protection afforded by KRS 61.810(1)(b) for discussions of the acquisition or sale of real property does not extend to these discussions expressly or impliedly.
Nor does the protection afforded by KRS 61.810(1)(g). In construing this provision, the Attorney General has observed:
What formerly appeared among the exceptions to open and public meetings as KRS 61.810(7) was an exemption for "Meetings between public agencies and industrial prospects." As a result of the 1992 amendments to the Open Meetings Act (1992 Acts, Chapter 162, HB 16), KRS 61.810(7) was repealed and the phrase "industrial prospects" was stricken. What was substituted for KRS 61.810(7) is what now appears as KRS 61.810(1)(g) and which provides as one of the exceptions to open and public meetings:
Under the new provision a meeting between the city and a representative of a business entity or a meeting of the city [council] pertaining to a specific proposal could only be closed if an open and public discussion would jeopardize, among other things, the locating of the business in the area.
94-OMD-119, p. 3. Whereas prior to 1992 proper invocation of the exception depended upon the presence of a representative of the industrial prospect (see, e.g., OAG 80-530), the amended KRS 61.810(1)(g) was broadened to include "discussions concerning a specific proposal," with or without the representative (see, e.g., 94-OMD-119), but only if open discussion would jeopardize the business entity's undisclosed interest in siting, retention, expansion, or upgrading of the business. Compare 94-ORD-119 (KRS 61.810(1)(g) not properly invoked where business involved had publicly announced at a ceremony attended by the Governor that it intended to locate in the area); 99-OMD-104 (KRS 61.810(1)(g) properly invoked to conduct closed session discussion concerning corporations undisclosed interest in expanding and upgrading its operations in county, and confidentiality was required to consummate the expansion project).
Simply stated, the closed session discussions conducted at the Hopkins County Fiscal Court's February 14 special meeting did not qualify under this exception. They did not involve a representative of a business entity with previously undisclosed plans to locate, expand, or upgrade its business in Hopkins County; nor did the discussions center on a specific proposal submitted by a business entity relative to siting, retention, expansion, or upgrading of the business. Again, the fiscal court's argument ignores the first condition of the exemption. The purpose underlying KRS 61.810(1)(g), namely to promote and facilitate economic development by private industry in the Commonwealth, is not served by closed session discussions between an architect under contract with, or otherwise employed by, the county, and county officials, concerning cost estimates for the renovation and remodeling of a building owned by the county and dedicated to public use. Again, although similar financial interests might be implicated, the protection afforded by KRS 61.810(1)(g) does not extend to these discussions, and the fiscal court's reliance on the exception was misplaced.
Accordingly, we find that the Hopkins County Fiscal Court violated the Open Meetings Act at its February 14, 2001, meeting. That meeting was, in fact, a special meeting subject to the requirements of the Act, though its purpose was primarily informational, and the public's right to observe the proceeding should not have been abridged.
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.
Elbert A. PowellP.O. Box 601Nortonville, KY 42442
Richard L. FrymireJudge Executive Hopkins County Fiscal CourtHopkins County CourthouseMadisonville, KY 42431
Robert MooreHopkins County AttorneyHopkins County Courthouse25 East Center StreetMadisonville, KY 42431
Footnotes
Footnotes
1 Although Mr. Powell does not directly raise the issue, it appears that the fiscal court's response to his open meetings complaint was not timely. KRS 61.846(1) provides that upon receipt of an open meetings complaint, "[t]he public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after 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." (Emphasis added.) Mr. Powell mailed his request on February 20, and the fiscal court's response was issued on February 27, some six business days after the request was mailed, and three days beyond the statutory deadline for agency response.
2 In a letter dated March 9, 2001, Judge Frymire again supplemented the fiscal court's response by answering charges apparently leveled by Mr. Powell in the local paper. These charges concerned the lack of a formal vote on the motion to go into closed session. Mr. Powell did not raise this issue in his complaint, or appeal, and it is therefore not ripe for review by this office.
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3 Judge Frymire does not indicate whether the meeting notice contained an agenda. Pursuant to KRS 61.823(3), written notice of a special meeting must include "the date, time, and place of the special meeting and the agenda . . . [and] discussions and actions at the meeting shall be limited to items listed on the agenda in the notice." There is no statutory recognition of, or exemption for, "informational" meetings of a public agency. Failure to comply with KRS 61.823(3) constitutes a violation of the Open Meetings Act.
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4 We reject, and therefore do not address, thefiscal court's reliance on KRS 61.878(1)(c)1., KRS 61.878(1)(f), KRS 61.878(1)(i), and KRS 61.878(1)(j). These open records exceptions extend protection to public documents, and not to the discussion of those documents by public officials in an open public meeting. In 00-ORD-46, this office opined that the exceptions to open meetings codified at KRS 61.810(1)(a) through (l) do not create independent bases for denying access to public records, and are not engrafted upon the open records exceptions to authorize nondisclosure of nonexempt public records which may properly be discussed in closed session. The converse of this holding is equally true. The exceptions to the Open Records Act, codified at KRS 61.878(1)(a) through (l), do not create independent bases for conducting closed session discussion, and are not engrafted upon the open meetings exceptions. Despite the obvious tensions that sometimes arise, we have thus observed:
[T]he Open Records Act and the Open Meetings Act occasionally work at cross-purposes and cannot be harmonized. Thus, the Open Meetings Act may require a public agency to discuss in an open and public meeting a record that qualifies for exclusion from public inspection by one or more of the exceptions to the Open Records Act.
00-ORD-140, p. 6, note 4. Without reaching the issue of whether the written cost estimates prepared by Mr. Barton were indeed exempt under the cited open records exceptions, we note that this appeal is demonstrative of the conflict between the two laws.
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