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 Meade County Fiscal Court violated the Open Meetings Act at its July 10, 2001, regular meeting when it went into executive session under authority of KRS 61.810(1)(c) "to discuss the Kullman/Morris vs. Baysinger litigation." For the reasons that follow, and upon the authorities cited, we conclude that the fiscal court's reliance on KRS 61.810(1)(c) was misplaced, and that its closed session discussion of Kullman v. Baysinger, Civil Action No. 99-CI-00258 (Meade Circuit Court, Division II), was not authorized by the Open Meetings Act.
On July 12, 2001, Meade County Messenger editor Pat Bowen submitted a complaint to Meade County Judge/Executive Mark Brown in which she alleged that the fiscal court violated the Open Meetings Act at its July 10 meeting when it went into closed session to discuss "pending litigation. " She noted that when the fiscal court emerged from the closed session, "a motion was made, seconded and approved to appoint a committee to review emergency vehicle response procedures and to suspend court sanctioned use of blue lights by constables. " Further, Ms. Bowen noted that in a July 12 conversation, Judge Brown acknowledged that the closed session discussion did not relate to Kullman v. Baysinger, above, but instead related to limiting the county's liability. As a means of remedying the alleged violation, Ms. Bowen proposed that the fiscal court "discuss in the next open meeting the subjects that were discussed in this allegedly closed session. "
In a response dated July 16, 2001, Judge Brown denied that any violation of the Open Meetings Act occurred at the July 10 meeting. He explained:
Let me officially say that the purpose of the closed session was to discuss the Kullman/Morris vs. Baysinger litigation. That litigation is still pending because the attorney for Eddie Baysinger has appealed the matter to the Kentucky Court of Appeals.
The county attorney believed it was his duty to speak to the Fiscal Court about all aspects of the litigation and officially inform the Fiscal Court that a $ 2 million judgment had been entered against Baysinger. The county attorney further informed the Fiscal Court that the verdict, generally, seemed to center around emergency vehicle equipment.
As a result of the jury's verdict in this pending litigation, the county attorney gave the Fiscal Court options to limit the county's potential liability for future purposes. One option presented was to appoint a committee to review emergency vehicle response procedures. Another option was to suspend Fiscal Court's sanctioned use of blue lights by constables. The Fiscal Court decided to adopt both options.
In closing, Judge Brown asserted that "[p]ending litigation matters are clearly allowed to be discussed in closed session under Kentucky law . . . . [,] and nothing was discussed outside the parameters of this pending litigation. " This appeal followed.
On appeal, Ms. Bowen states that The Messenger has "no problem with the first part of [Judge Brown's] answer, paragraphs two and three of his reply," but that the newspaper does not agree that "a discussion of potential liability, as outlined in paragraph four" constitutes "discussions of proposed or pending litigation" within the meaning of KRS 61.810(1)(c) . It is The Messenger's position that "[t]his has nothing to do with pending litigation and we feel it should have been discussed in open meeting, so citizens present could hear the options and any ensuing debate."
In a supplemental response directed to this office following commencement of The Meade County Messenger's appeal, Meade County Attorney Darren A. Sipes elaborated on the fiscal court's position. He explained:
The topic of discussion was the pending litigation of a trial that had recently concluded between the parents of two girls that were tragically killed and a Meade County Deputy Sheriff (hereinafter referred to as the "Kullman vs. Baysinger trial"). The Circuit Court jury found in favor of the parents and awarded them damages in excess of $ 2 million dollars. The Deputy Sheriff immediately appealed the verdict to the Kentucky Court of Appeals, thereby keeping the matter "pending litigation. " 1
Related topics of that pending litigation were further discussed in closed session. The Fiscal Court discussed appellate procedures and the reasons for the verdict against the Deputy Sheriff. The County Attorney gave the following reasons for the verdict: emergency vehicle equipment, possible emergency response communications that took place at the Meade County 911 dispatch center, radio communications and speed.
The Fiscal Court asked the County Attorney whether this particular Deputy had a right to emergency vehicle equipment and who else in the County was using law enforcement blue lights sanctioned by the Fiscal Court. The County Attorney responded by telling the Fiscal Court that the Deputy did have a right to have the emergency vehicle equipment because he was on duty at the time of the accident and he was operating a Sheriff's vehicle that was identified as a Sheriff's car which contained the appropriate emergency vehicle equipment. Furthermore, the County Attorney informed the Fiscal Court that the only other persons with Fiscal Court sanctioned blue lights were various elected constables.
The Judge Executive stated he was going back into open session and make motions to form a committee to review emergency vehicle response procedures and suspend Fiscal Court's sanctioned use of blue lights by constables. The County Attorney advised the Fiscal Court that those options would be legal and were entirely within its discretion if it voted to act on those matters. The County Attorney further advised the Fiscal Court in closed session that any discussion/debate on these motions would have to occur in open session after the Judge-Executive made the motions. Clearly, mere statements by the Judge-Executive proposing the motions he was going to make in open session were within the parameters of the liability issues that were a part of the Kullman vs. Baysinger pending litigation.
Noting that the formalities for going into a closed session were observed, and that all action relative to the appointment of a committee 2 to review emergency vehicle response procedures was conducted in open session, Mr. Sipes "demand[ed] that The Meade County Messenger's complaint/appeal be dismissed and findings be made that the Meade County Fiscal Court conducted a legal closed session on July 10, 2001, as it pertained to the Kullman v. Baysinger pending litigation. " Because we do not believe that any portion of the closed session discussion was authorized under KRS 61.810(1)(c), we cannot accede to the fiscal court's demand.
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:
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 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) (emphasis added). 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 at 923.
In Floyd County Board of Education v. Ratliff, the Kentucky Supreme Court construed KRS 61.810(1)(c), opining:
[T]he 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, is threatened with litigation, or anticipates initiating litigation on its own behalf. 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; 99-OMD-6 (Bowling Green-Warren County Regional Airport Board properly relied on KRS 61.810(1)(c) to conduct a closed session discussion of threatened litigation by airport tenants to challenge Board's refueling policy, and litigation the Board was likely to initiate against its insurer over disputed storm damage); compare 98-OMD-105 (Bourbon County Fiscal Court failed to make sufficient showing that it properly conducted closed session to discuss pending litigation) .
The language of KRS 61.810(1)(c) is exact. Discussion of proposed or pending litigation may only be conducted in closed session if the litigation is against or on behalf of the public agency. The record before us is devoid of proof that the Meade County Fiscal Court is a party to Kullman v. Baysinger, above. As this office opined in 93-OMD-119:
The litigation exception, like the other exceptions to the basic policy of open and public meetings, must be narrowly construed. This office cannot condone the invoking of KRS 61.810(1)(c) when the agency in closed session does nothing more than monitor cases which have not been filed against or on behalf of the public agency attempting to utilize the exception. To do so would be an improper and unauthorized expansion of the exception. Generally, the discussion of cases in which the public agency is not a party plaintiff or defendant must be conducted in open and public sessions.
93-OMD-119, p. 3. This office has obtained a copy of the trial order and judgment signed by Special Judge John D. Minton, Jr., and entered on July 13, 2001 (copy enclosed). The style of the case reads as follows: Sandra Kullman, Administratrix of the Estate of Amanda B. Thomas, Deceased, vs. Edwin I. Baysinger consolidated with Brenda Morris, Individually, and as Administratrix of the Estate of Brianna Morris, Deceased, vs. Edwin I. Baysinger and Sandra Kullman, Administratrix of the Estate of Amanda B. Thomas, Deceased, and Kentucky Farm Bureau Mutual Insurance Co. and Re/Max Executive Group, Inc. The Meade County Fiscal Court is nowhere named as a party defendant, and is therefore not entitled to invoke KRS 61.810(1)(c) for the purpose of conducting a closed session discussion of Kullman v. Baysinger above, regardless of whether that discussion focuses on appellate procedures, reasons for the verdict against the deputy sheriff, or avoidance of future liability. Simply stated, Kullman v. Baysinger, above, is not proposed or pending litigation against or on behalf of the Meade County Fiscal Court, and closed session discussions of any aspect of that case are not authorized.
We believe that the facts before us are distinguishable from those presented to us in 01-OMD-41 wherein we affirmed the Georgetown-Scott County Planning Commission's invocation of KRS 61.810(1)(c) to justify a closed session discussion of a homeowners' association suit in which the fiscal court was the named defendant against a claim that the commission was not a party to the lawsuit. There, the planning commission established that it should have been a named defendant in the suit, that it was anticipated that it would be added as a party, that two commission employees were parties, that it performed all of its actions in the matter as agent of the fiscal court, and that ultimate exposure lay with the commission and not the county. Additionally, the planning commission verified that it was considering both civil and criminal action against the developer whose actions precipitated the homeowners' association's suit. On this basis we concluded that the Planning Commission's "nexus to pending litigation and to requested and threatened litigation satisfie[d] the statute." 01-OMD-41, p. 2. The record before us in this appeal does not disclose any nexus between the fiscal court and the pending litigation. Accordingly, we find that the Meade County Fiscal Court's closed session discussion of Kullman v. Baysinger, above, constituted a violation of 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 proceedings.
Pat BowenThe Meade County Messenger235 Main StreetP.O. Box 678Brandenburg, KY 40108
Mark S. BrownMeade County Judge-ExecutiveMeade County CourthouseBrandenburg, KY 40108
Darren SipesMeade County Attorney Meade County Courthouse516 Fairway DriveBrandenburg, KY 40108
Footnotes
Footnotes
1 As of July 24, 2001, neither the Meade Circuit Court nor the Kentucky Court of Appeals had received notice of appeal from the trial order and judgement entered on July 13, 2001.
2 This committee, in itself, constitutes a public agency for purposes of the Open Meetings Act pursuant to KRS 61.805(2)(g), and must comply with all requirements of the Act.
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