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 Floyd County Board of Education violated the Open Meetings Act when it went into closed session during its April 23, 2001, regular meeting for the stated purpose of discussing "litigation, property, personnel, and expulsions (KRS 61.810)." For the reasons that follow, we conclude that the Board's actions were partially inconsistent with the requirements of the Act.
On September 28, 2001, Earl M. McGuire submitted a written complaint to Floyd County Board of Education Chairman Johnnie Ross on behalf of his clients Pete Grigsby, Wayne Ratliff, and Tommy Thompson. Mr. McGuire complained generally that the Board did not satisfy the requirements for conducting a closed meeting, per KRS 61.815, at the April 23 meeting. In support, he noted:
The Board Minutes of April 23, 2001, shows: "Motion by the Rev. Johnnie E. Ross, seconded by Jeff Stumbo, to re-enter executive session to discuss litigation, property and personnel" . This executive session for litigation, property and personnel is not listed in the agenda.
The notice given during the regular open portion of the meeting does not state the general nature of the business to be discussed in closed session or the reason for the closed session. The minutes do not state specific facts or reasons to discuss litigation, property and personnel.
As a means of remedying this violation, Mr. McGuire proposed that the Board:
1. Acknowledge violation of the Open Meeting Law.
2. [through 4.] State the general nature of the business that was discussed concerning property, [personnel, and litigation] and the reason it had to be discussed in closed session.
5. In addition thereto, we demand a certification that nothing else other than as set out in your response was discussed in executive session.
6. [and 7.] We also demand a certification that no one entered the executive session, was present or was allowed to listen in except for the Board members and the Board attorney. . . . If the School Board allows anyone other than Board members and the Board attorney in executive session we believe this is not a closed session. If any other person has been allowed in then all discussion must be made known to the public. This is the remedy we so demand.
In closing, Mr. McGuire urged the Floyd County Board of Education to "determine within three days after receipt of this complaint whether to remedy the alleged violation and . . . notify [his clients and him] in writing within the three day period." Having received no response to his complaint, Mr. McGuire initiated this appeal in a letter dated October 5, 2001, and received on October 8, 2001.
On October 8, the Attorney General issued notification of receipt of Mr. McGuire's appeal to the Floyd County Board of Education and its attorney Michael J. Schmitt. On October 9, 2001, Mr. Schmitt responded to the complaint and appeal on behalf of his client. He explained that the Board's delay in responding to the complaint was occasioned by the failure of the individual who signed for the certified letter, Chairman Ross' minor daughter, to apprise her father of receipt of the letter. Mr. Schmitt indicated that he did not receive a copy of the complaint until October 9, 2001.
In responding to the substantive allegations contained in Mr. McGuire's complaint, Mr. Schmitt advised that "the Record of Board Proceedings for the April 23, 2001, meeting . . . reflects Agenda Item # 6 'Executive Session to discuss litigation, property, personnel, and expulsions (KRS 61.810).'" It was his position that the minutes state, "to the extent . . . required under Kentucky law, the facts or reasons for going into closed session, " and he therefore denied generally the allegation that the Board violated the Open Meetings Act. With reference to each of the remedial measures proposed, he replied:
2. [through 4.] Pursuant to KRS 61.815(2) public agencies and activities of public agencies identified in Paragraph A, C, D, E, F but only so far as F relates to students, G, H, I, J, K, and 1 [sic] of KRS 61.810 are excluded from the requirements of subsection 1 of this section. To the extent that property[, personnel, and litigation] [were] discussed in the closed session, it involved matters of pending litigation and thus matters exempt from the open meeting laws under KRS 61.810(c) [sic].
5. The relief requested in Numerical Paragraph 5 will be provided via attached affidavit though it is our belief that there were no violations of the open meetings laws and we would not be required to provide the relief requested - the board minutes speak for themselves.
6. [and 7.] In response to Numerical Paragraph 6 of your letter it is fairly well established that "any person whom the Board believes can contribute information or advice on the subject matter under discussion may be invited into the executive session but should remain only so long as is necessary to make his contribution to the discussion." (See OAG 77-560; OAG 80-247; and OAG 83-61). To my knowledge, the only other individuals included in the executive session were the State Manager Woodrow Carter, Board Superintendent Paul Fanning, and myself. The State Manager, Woodrow Carter was the designee of the Commissioner of Education pursuant to KRS 158.785 and had been designated as the Board's liaison with legal counsel for litigation matters. Mr. Carter was present in executive session to provide his perspective on pending litigation especially the case on which authority to settle was granted. Mr. Carter had gathered all of the evidence available to the school district in defense of that civil action. Moreover as State Manager Mr. Carter was the designee of the Commissioner of Education who had the right pursuant to statute and written agreement with the school district to exercise veto power over actions of the board of education. A copy of the agreement is attached.
Mr. Schmitt concluded his response by referring to the Kentucky Supreme Court's decision in
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921 (1997), and in particular the court's observation that the exemption for closed session discussions of proposed or pending litigation "must not be expanded to include general discussions of 'everything tangential to the topic.'" Floyd County Board of Education at 924. He assured Mr. McGuire that "this is not the situation here and there were no violations of the open meetings law during the April 23, 2001, regular meeting of the Floyd County Board of Education. "
Having reviewed the record on appeal, we find that the Board of Education did not violate the Open Meetings Act in describing the reason for the closed session in its regular meeting agenda, and in admitting non-members to its closed session discussion of pending litigation for the limited purposes identified by Mr. Schmitt in numbered paragraphs 6 and 7 of his response. However, we find that the Board's failure to respond to Mr. McGuire's complaint within three business days of receipt constituted a violation of KRS 61.846(1), and that its failure to comply with the requirements for conducting closed sessions constituted a violation of KRS 61.815(1)(a). We examine each of these issues below.
KRS 61.820 and specificity of agenda items
The parties to this appeal agree that the Board meeting conducted on April 23, 2001, was a regular meeting. Accordingly, KRS 61.820 is the applicable statutory provision. KRS 61.820 provides:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
In contrast to the statutory provision that is applicable to special meetings, which is codified at KRS 61.823, and which expressly requires the inclusion of an agenda in the written notice of said special meetings, 1 KRS 61.820 does not require agencies to prepare an agenda for a regular meeting. Accordingly, if a public agency elects to prepare one, it is not bound to observe the standard of fair notice to the public of particular topics to be discussed or acted upon that was recently articulated by this office.
In 01-OMD-175, we recognized that "[b]ecause no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings." 01-OMD-175, p. 6. Although implicit in the cited decision, we now expressly hold that the description of items to be discussed or acted upon in the non-mandatory agenda for a regular meeting need not be sufficiently specific to insure fair notice to the public. In so holding, we do not mean to suggest that public agencies may prepare agendas for regular meetings that are consciously misleading or entirely inaccurate. Instead, we conclude that because no agenda requirements, or limitation on discussions and actions, for a regular meeting is statutorily imposed, public agencies cannot be held to the same high standard in preparing their agendas for these meetings.
Admission of non-members into closed session
Mr. McGuire next complains that if any person other than the Board members was admitted into the closed session, this was "not a closed session . . . [, and] all discussion must be made known to the public." The Board of Education acknowledges that three individuals other than its own members attended the closed session discussion of pending litigation, but that their presence was permissible under the rule announced in OAGs 77-560, 80-247, and 83-61. Mr. Schmitt explained that he and Floyd County Superintendent Paul Fanning attended the closed session along with State Manager Woodrow Carter, "the designee of the Commissioner of Education pursuant to KRS 158.785 and . . . the Board's liaison with the legal counsel for litigation matters." We find that the presence of these individuals was not "inconsistent with invocation of the attorney-client privilege and a confidential discussion of strategy and tactics . . .," 01-OMD-152, p. 6, and does not constitute a violation of the Open Meetings Act. Compare, 00-OMD-219.
As Mr. Schmitt correctly observes, the Attorney General has recognized that 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.
In contrast, the Attorney General rejected the agencies' claims that the presence of non-members in their closed sessions was permissible in 00-OMD-219 and 01-OMD-152. In 00-OMD-219, no justification was offered for the presence in a closed session conducted under KRS 61.810(1)(c) of an individual who was not a member of the agency, a lawyer for the agency, or an employee of a lawyer for that agency. We concluded that "the protections afforded by the attorney-client privilege and the 'pending litigation' exception were defeated by [the individual's] presence." 00-OMD-217, p. 4. 2 Similarly, in 01-OMD-152, the public agency offered no explanation for the presence of non-members in a closed session conducted under authority of KRS 61.810(1)(c), and we held that the agency had improperly "engaged in the practice of selective admission in contravention of the requirements of the Open Meetings Act. " 01-OMD-152, p. 9.
Such is not the case in the appeal before us. The presence of the board's attorney and the superintendent in the closed session discussion of pending litigation requires no explanation. With reference to Mr. Carter's presence, Mr. Schmitt explains that he was invited into the closed session "to provide his perspective on pending litigation especially the case on which authority to settle was granted," since it was Mr. Carter who "gathered all evidence available to the school district in defense of that civil action," and Mr. Carter "who had the right pursuant to statute and written agreement with the school district to exercise veto power over actions of the board of education. " Based on the authorities cited above, and assuming that these individuals were excused when their presence was no longer required, we believe Mr. Schmitt's, Superintendent Fanning's, and Mr. Carter's presence in the Floyd County Board of Education's closed session was justified.
KRS 61.846(1) and failure to properly respond to complaint
KRS 61.846(1) establishes the duties of a public agency in responding to an open meetings complaint. That statute provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. 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.
The Floyd County Board of Education's response to Mr. McGuire's complaint was issued on the seventh business day following delivery and receipt of the complaint rather than on the third business day as the law requires. Although Mr. Schmitt offers an explanation for the Board's failure to respond in a timely fashion, we do not believe the violation is thereby mitigated. The procedural requirements of the Open Meeting Act are not mere formalities but are instead essential to the prompt and orderly processing of an open meetings complaint. The Floyd County Board of Education should be guided by these observations in responding to future open meetings complaints.
KRS 61.815(1) and failure to comply with the requirements for conducting closed sessions
The final allegation in Mr. McGuire's complaint focuses on the Board's failure to comply with KRS 61.815(1)(a) prior to going into closed session. He maintains that "the notice given during the regular open portion of the meeting does not state the general nature of the business to be discussed in closed session or the reason for the closed session. " Mr. Schmitt responds that pursuant to KRS 61.815(2) "public agencies and activities of public agencies identified in paragraphs (a), (c), (d), (e), (f) but only so far as (f) relates to students, (g), (h), (i), (j), (k), and (l) of KRS 61.810 are excluded from the requirements of [KRS 61.815(1)]." It is apparently the Board's position that because its closed session discussion was conducted under authority of KRS 61.810(1)(c) and (f), 3 KRS 61.815(2) relieved it of its duty to comply with the requirements of KRS 61.815(1)(a). While we acknowledge that KRS 61.815(2) lends itself to conflicting interpretations, this office has taken a position through the years that is contrary to the Board's interpretation.
KRS 61.815(1) and (2) provide as follows:
(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(2) Public agencies and activities of public agencies identified in paragraphs (a), (c), (d), (e), (f), but only so far as (f) relates to students, (g), (h), (i), (j), (k), and (l) of subsection (1) of KRS 61.810 shall be excluded from the requirements of subsection (1) of this section.
Those provisions have existed in the law since its enactment, 4 and, as noted, since its enactment the Attorney General has wrestled with an interpretation of KRS 61.815(2) that does not entirely defeat the purpose and intent of KRS 61.815(1). In OAG 80-248, we analyzed the language of KRS 61.815 in an attempt to resolve the "problem of statutory interpretation" it presents. OAG 80-248, p. 1. There, we observed:
Taken literally KRS 61.815(2) excludes from any formality concerning going into a closed session every exception listed in KRS 61.810 except (b), (e), and (f) as it relates to students -- acquisition or sale of real property, collective bargaining negotiations and personnel matters. Such a literal interpretation would mean that an agency could go into closed session without any of the formalities set forth in KRS 61.815 under the other eight exceptions listed. However, . . . we do not believe that the literal interpretation comports with the legislative intent. We believe that the legislative intent is that agencies, per se, which are exempt from complying with the Open Meetings Law, such as the Parole Board, juries, the Governor's cabinet, committees of the General Assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in KRS 61.815, and that agencies which are not exempt per se but which go in closed session to deal with an excepted subject matter must observe those formalities.
OAG 80-248, p. 2. Chief among the Attorney General's reasons for reaching this conclusion was practicality. We observed:
When a public agency which is generally required to hold open meetings finds it necessary to go into a closed session to deal with a particular excepted subject matter, the spirit of the Open Meetings Law and the concern of the public is best served by observing the steps set forth in KRS 61.815. For such an agency, convened in a regular or special meeting in accordance with KRS 61.820-61.825 , to go into closed session without first giving notice in open session of the general nature of the business to be discussed and without first passing a motion in open session, would create doubt in the minds of members of the public as to whether the Open Meetings Law was being properly observed and could, in fact, lead to laxity in observing the law. 5
OAG 80-248, p. 2; accord, 94-OMD-78; 97-OMD-96. The Floyd County Board of Education is not exempt, per se, from complying with the Open Meetings Act, and we therefore conclude that it is required to comply with the requirements for conducting a closed session codified at KRS 61.815(1)(a). KRS 61.805(2)(c); Floyd County Board of Education v. Ratliff, above.
The position we have taken through the years finds support in Floyd County Board of Education v. Ratliff, above. In Floyd County Board of Education, the Supreme Court determined that the Board failed to give proper notice in open session of the matters to be discussed in a closed session. Rejecting the Board's argument that it had substantially complied with the requirements for conducting a closed session, the court opined:
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. In this case, the minutes of the Board do not reflect any mention of the "proposed or pending litigation" exception to the Open Meetings Act. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. See Fiscal Court v. Courier Journal and Louisville Times Co., Ky., 554 S.W.2d 72 (1977); Jefferson County Board of Education, supra, at 28. We agree with the language written by then Court of Appeals Judge Johnstone and concurred in by the panel composed of Judges Schroder and Wilhoit that "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny. Unfortunately, we believe that is precisely how they were used in this case."
Discussions between Board members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct.
Floyd County Board of Education at 924. The position long taken by the Attorney General relative to compliance with the requirements for conducting a closed session thus comports with the rule announced in Floyd County Board of Education v. Ratliff, above.
On the issue of strict compliance with KRS 61.815(1)(a), the Attorney General recently observed:
It is the opinion of this office that the Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed.
00-OMD-61, p. 6. Referring to the language employed by the Supreme Court in Floyd County Board of Education, above, we concluded:
In view of the disparate nature of the twelve exceptions, there can be no bright line test for determining if specific and complete notification has been given. However, consistent with the right of the people to "remain[] informed so that they retain control over the instruments they have created" (1974 HB 100, Preamble), we believe that the notification must include both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in sufficiently specific terms to enable the public to assess the propriety of the agency's actions.
Id.
With specific reference to KRS 61.810(1)(c) and "discussions of proposed or pending litigation against or on behalf of the public agency, " we have stated that although:
An agency is authorized to discuss its preparation, strategy, or tactics relative to threatened litigation in a closed session . . ., that provision does not authorize it to maintain absolute secrecy as to the general nature of the litigation. How else can the public, this office, and the courts evaluate the propriety of the agency's actions?
98-OMD-105, p. 6. With specific reference to KRS 61.810(1)(f), and "discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student," we have stated:
Prior to going into a closed session for one of the specific purposes authorized by KRS 61.810(1)(f), a public agency must state during the regular and open portion of the meeting the general nature of the business to be discussed and the reason for the closed session. While the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal, or disciplinary action, the public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.
97-OMD-110, p. 3.
The minutes of the Board's August 23 regular meeting reflect that two motions were made to conduct closed sessions, the first "for discipline hearing only (KRS 61.810)," and the second "to discuss litigation, property, and personnel (KRS 61.810)." At the conclusion of the first closed session, votes were taken on the imposition of disciplinary action on two students. At the conclusion of the second closed session, a vote was taken "to authorize the board attorney to settle the James Bowling case, as discussed in executive session. " The minutes do not reflect strict compliance with the requirements of KRS 61.815(1)(a). There is no indication that notice was given in the open meeting of the general nature of the business to be discussed, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. We believe it was incumbent on the Floyd County Board of Education to provide more than a single word descriptor, such as "litigation, property, and personnel, " of the reason for, and general nature of the business to be discussed in, its closed session. To the extent that the Board failed to strictly comply with the requirements for conducting a closed session, we find that it violated 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.
Earl M. McGuire181 E. Court StreetPrestonsburg, KY 41653
Chairman Johnnie RossFloyd County Board of Education 283 South Arnold AvenuePrestonsburg, KY 41653
Michael J. Schmitt327 Main StreetPaintsville, KY 41240
Footnotes
Footnotes
1 KRS 61.823(3) thus states:
The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
2 At footnote 1 of 00-OMD-219, we observed:
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 KRE 503(a)(4).
3 It is unclear what portion of the closed session discussion, if any, related to "property," and whether exemption from open discussion could properly be claimed under KRS 61.810(1)(b) authorizing closed session "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. "
4 KRS 61.815(1) and (2) have undergone minor statutory revisions over time, but these revisions do not alter our analysis.
5 In 1992, the Open Meetings Act was amended, and an additional requirement imposed on public agencies before going into closed session. In addition to giving notice in the regular open meeting of the general nature of the business to be discussed in closed session, and the reason for the closed session, agencies are now required to give notice of "the specific provision of KRS 61.810 authorizing the closed session. " This suggests a legislative resolve to further enhance the public's right to monitor public official conduct in a public meeting.