Request By:
Gary Ball
The Mountain Citizen
P.O. Box 1029
Cain Building
Inez, KY 41224Lon E. Lafferty
Martin County Judge/Executive
P.O. Box 309
Inez, KY 41224
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 Martin County Fiscal Court violated the Open Meetings Act at its August 9, 2001, special meeting when it went into executive session under authority of KRS 61.810(1)(c) to discuss "the issue of how, when, and where to seek legal advice regarding [ Martin County Attorney v. Martin County Judge/Executive and Martin County Fiscal Court , Civil Action No. 01-CI-00206]." For the reasons that follow, and upon the authorities cited, we conclude that although litigation has been initiated against the fiscal court, the closed session discussion was not "of proposed or pending litigation, " but of the need to hire legal counsel, and that even if the topic discussed fell within the parameters of KRS 61.810(1)(c), the presence of persons who were not members of the public agency in the closed session was inconsistent with the fiscal court's invocation of the exemption.
On August 16, 2001, Mountain Citizen editor Gary Ball submitted a written complaint to Martin County Judge/Executive Lon E. Lafferty in which he alleged that the fiscal court violated the Open Meetings Act in the course of its August 9 meeting when it went into closed session for the stated purpose of discussing Martin County Attorney v. Martin County Judge/Executive, et al . Mr. Ball observed:
After coming out of closed session, a vote was called for to hire local attorney Regina Triplett as counsel for the judge and court in pending litigation. This is reason enough to believe the purpose of the closed session was not to discuss litigation but the hiring of counsel, a matter that should have been discussed in an open meeting.
As a means of remedying the alleged violation, Mr. Ball proposed that "discussions of hiring personnel, including an attorney, be done in an open meeting. "
In addition, Mr. Ball complained that the closed session was improper "because it arbitrarily excluded certain people in attendance, including the press, while allowing other people who were there for no other purpose than spectators. " Mr. Ball focused on Ms. Triplett's presence, noting that because the fiscal court had not yet voted to hire her, "her attendance in closed session . . . was illegal." He proposed that the fiscal court remedy this violation by explaining "in open meeting the reasons for allowing certain individuals into executive session while excluding others." Having received no response to his complaint, Mr. Ball initiated this open meetings appeal on August 23, 2001.
In a letter directed to this office following commencement of Mr. Ball's appeal, Judge Lafferty responded to his allegations. Judge Lafferty began by denying receipt of the Mountain Citizen's open meetings complaint until after Mr. Ball initiated his appeal, and then only after receipt of notification of the filing of the appeal and a request to this office to obtain a copy. 1 Continuing, he observed:
1) A meeting was held on August 9, 2001 and it was a one-item agenda. Please find enclosed with this response the agenda for the Martin County Fiscal Court for a "Special" Fiscal Court Meeting dated August 9, 2001; 2
2) An Executive Session was called so that the Board could discuss the one item on the agenda, namely the Martin Circuit Court Action of the Martin County Attorney's Office vs. the Martin County Judge/Executive and the Martin County Fiscal Court Civil Action no. 01-CI-00206;
3) As you well know, I may not divulge the specifics of the Executive Session at this time. However, I will tell you that the Martin County Circuit Court Civil Act was the only item of discussion in that meeting and particularly issues concerning the Martin County Attorney's ability to advise the Fiscal Court as to the lawsuit. As you can see, my office and the Fiscal Court was in a bind because the Martin County Attorney's office was suing both the Martin County Fiscal Court and my office, the Martin County Judge/Executive's office. Therefore, we had to address the issue of how, when, and where to seek advice regarding this particular lawsuit.
In closing, Judge Lafferty asserted that "proper notification was given to convene a 'Special' Meeting and an Executive Session, to the press, who were in attendance. " While we acknowledge that litigation against the fiscal court was pending on the date the special meeting was held, we find that discussions of "how, when, and where to seek legal advice" do not constitute "discussions of proposed or pending litigation, " within the meaning of KRS 61.810(1)(c), as construed by the courts and this office, and that even if this topic could properly be characterized as a discussion of pending litigation, Ms. Triplett's presence, and the presence of others who were not members of the fiscal court, was inconsistent with the invocation of the exemption.
In 01-OMD-130, this office determined that a fiscal court's reliance on KRS 61.810(1)(c) as the statutory basis for its closed session was misplaced. At pages four and five of that decision, we 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:
As a means of implementing this policy, 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 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 at 923.
In Floyd County Board of Education v. Ratliff , the Kentucky Supreme Court construed KRS 61.810(1)(c), opining:
Floyd County Board of Education at 923, 924.
01-OMD-130, p. 4, 5.
Guided by these observations, and the recognition that "statutes enacted for the public benefit should be interpreted most favorably to the public,"
Board of Public Instruction v. Doran, Fla., 224 So. 2d 693 (1969) cited with approval in
Courier-Journal and Louisville Times v. University of Louisville Board of Trustees, Ky., 569 S.W.2d 374 (1979), this office has determined in a number of decisions that a public agency's reliance on KRS 61.810(1)(c) was misplaced when it was invoked for purposes other than to maintain the confidentiality of its litigation strategy in ongoing litigation to which it was a party. See 93-OMD-119 (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 a similarly situated policemen's pension fund) ; 98-OMD-105 (Bourbon County Fiscal Court failed to make sufficient showing that it properly conducted closed session to discuss pending litigation) ; 00-OMD-219 (presence of third party who was not a party to litigation, not a lawyer, or employee of a lawyer, employed by the public agency that invoked the exception was inconsistent with invocation of exception for purposes of a confidential discussion of litigation strategy and tactics) ; see also, 95-OMD-97, 01-OMD-130.
As narrowly construed by the Kentucky Supreme Court in Floyd County Board of Education v. Ratliff , above, "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 v. Ratliff at 924, citing Jefferson County Board of Education , above. "[T]he open meetings litigation exception," the Court has further noted, "addresses attorney-client confidentiality in meetings . . . ."
Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469, 473 (1997). Properly conducted closed session discussions of proposed or pending litigation, and matters inherent thereto such as preparation, strategy, or tactics, cannot, in our view, be expanded to include general discussions of the tangential "issue of how, when and where to seek legal advice . . . ." To the extent that Martin County Fiscal Court's closed session discussion focused on retaining legal counsel, it was not authorized by KRS 61.810(1)(c).
Assuming for the sake of argument that KRS 61.810(1)(c) could be expanded to include this discussion, we find that the presence of persons who were not members of the Martin County Fiscal Court in the closed session was inconsistent with the fiscal court's invocation of the exemption, and defeated the protection it might otherwise have afforded. In 00-OMD-219, the Attorney General was confronted with a similar issue. There the Pulaski County Fiscal Court, which was embroiled in litigation, conducted a closed session to discuss the litigation but admitted an individual who was not a member of the fiscal court, a lawyer for the fiscal court, or an employee of a lawyer for the fiscal court. At page 4 of that decision, we concluded that the individual's "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." 3 "The protections afforded by the attorney-client privilege and the 'pending litigation' exception," the Attorney General concluded, "were defeated by [that individual's] presence." Id.
Although this office 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 under discussion . . .," OAG 77-560, p. 3, we found that the Pulaski Fiscal Court offered no justification for the non-member' s presence in the closed session. We opined:
[I]n 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. 4 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:
OAG 77-560, p. 2.
00-OMD-219, p. 4, 5. Because the fiscal court invited a non-member into its closed session without explanation, we concluded that it "improperly engaged in the practice of selective admission," and that it thereby violated the Open Meetings Act. 00-OMD-219, p. 5.
Similarly, in the appeal before us the Martin County Fiscal Court does not deny that individuals who are not members of the fiscal court were present in its closed session, and does not offer any explanation for their presence. Based on our decision in 00-OMD-219, we conclude that it, too, engaged in the practice of selective admission in contravention of the requirements of the Open Meetings Act. Accordingly, even if the subject of retaining legal counsel was appropriate for a closed session discussion under KRS 61.810(1)(c), and we continue to believe that it was not, the presence of persons who are not members of the fiscal court in that closed session was inconsistent with invocation of the exception, and in 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.
Footnotes
Footnotes
1 Given this factual dispute, we do not address the issue of procedural noncompliance except to note that KRS 61.846(1) establishes guidelines for public agency response to an open meetings complaint. Any deviation from these procedural guidelines constitutes noncompliance.
2 The agenda for the special meeting reads as follows:
AGENDA
"SPECIAL" FISCAL COURT MEETING
August 9, 2001
1. Prayer
2. Pledge
3. Martin Circuit Court Civil Action No. 01-CI-00206
3 In a footnote to that decision, we reasoned:
With rare exception, "communications occurring between client and counsel in the presence of third persons are not protected from disclosure." Robert G. Lawson, The Kentucky Evidence Law Handbook , § 5.10 (Michie, 3d ed. 1993), citing Cubbage v. Gray, Ky., 411 S.W.2d 28 (1967); Hyden v. Grissom, Ky., 206 S.W.2d 960 (1947). Those rare exceptions involve the presence of "persons essential to the rendition of the legal services" such as legal secretaries, paralegals, law clerks, and experts. Kentucky Evidence § 5.10. The law is codified at KRE 503 which "defines confidential communication to include those disclosed to third persons to further rendition of the legal services and . . . explicitly extends protection to communications between a client and representatives of a lawyer, the latter being defined as 'a person employed by the lawyer to assist the lawyer in rendering professional legal services. '" Id ., citing KRS 503(a)(4).
00-OMD-219, p. 4, note 1.
4 Arguably, the Martin County Fiscal Court might have relied on KRS 61.810(1)(f) to conduct a closed session discussion of the qualifications of an individual, like Ms. Triplett, to represent it in the ongoing litigation, and invited her into the closed session to participate in an interview. Such a discussion might have led to her appointment within the meaning of that exemption. The fiscal court did not, however, rely on this exemption, and the presence of other individuals who were not members of the fiscal court in the closed session would have been inconsistent with its invocation.