Request By:
David T. Thompson
104 Chloe Court
Georgetown, KY 40324Everette Varney, Mayor
City of Georgetown
Georgetown City Hall
Georgetown, KY 40324Charlie Perkins, City Attorney
City of Georgetown
209 East Main Street
P.O. Box 677
Georgetown, KY 40324
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 Georgetown City Council violated the Open Meetings Act in conducting a closed session to discuss acquisition of the ten-acre Henry property at its May 16, 2002, meeting, and in failing to respond to David T. Thompson's June 13, 2002, complaint concerning the closed session. For the reasons that follow, we find that the council did not violate the Act when it elected to conduct its discussion in closed session pursuant to KRS 61.810(1)(b), but that its failure to respond to Mr. Thompson's complaint constituted a violation of KRS 61.846(1).
On June 13, Mr. Thompson submitted a written complaint to Everette Varney, Mayor of the City of Georgetown, in which he alleged that the city council violated the Open Meetings Act when it went into executive session to discuss land purchase so as to avoid publicity that would affect the purchase price. Mr. Thompson acknowledged that this would normally be permissible, but noted that a story appearing in the Georgetown News-Graphic the following day indicated that the council voted to purchase the property when it returned to open session. Quoting the language of the exemption relied upon, he questioned "how publicity would have affected the purchase price if the intent was to discuss this in executive session and then come out of the session and vote on purchasing the land." It was his position that "publicity would not have affected the purchase price since it was immediate." He therefore complained that "entering into Executive Session to discuss land purchase because publicity would affect the sale price was an inappropriate reason to enter Executive Session since the council voted to purchase the land immediately on returning to open session, " and requested that, as a means of remedying the alleged violation, the council suspend, reconsider, and withdraw the action taken at the May 16 meeting and re-open discussion in a regular open meeting; that the council publicly state that these are the reasons for suspending, reconsidering, and withdrawing the action; and that the council "strictly comply with the Open Meetings Laws in all areas and avoid any future discussion of public business that should be conducted in open session. " Having received no response to his complaint, Mr. Thompson initiated this appeal on September 9, 2002.
In his letter of appeal, Mr. Thompson identified an additional violation of the Open Meetings Act based upon the Georgetown City Council's failure to respond to his complaint. He observed:
I . . . wrote Mayor Everette Varney on June 13, 2002 . . . Two weeks later, on June 27, 2002, I received a letter from Mayor Varney. In it he stated that he had been out of town and that delayed his response to me. In addition, he explained that the city attorney was on vacation that week but when he returned (the first week of July), the city attorney would respond to my letter.
Noting that the Open Meetings Act requires public agencies to respond to complaints within three business days, Mr. Thompson indicated that as of September 9 he had received no response to his complaint. Accordingly, he requested that this office address "these, now, two issues."
In a letter directed to this office following commencement of Mr. Thompson's appeal, Georgetown City Attorney Charles M. Perkins responded to each of these allegations. With reference to Mr. Thompson's complaint concerning procedural noncompliance, he explained:
I first saw the complaint September 11, when your office faxed it to me. The Mayor's office apparently received the complaint on June 14. The only letter I saw was a May 17, letter from Mr. Thompson offering an explanation of open meetings law. That earlier letter was not a demand for corrective action requiring remedy and a formal response. The Mayor asked me to do something about the letter. The letter did not require a response so none was given.
The Mayor later asked me about the letter. I still believed he referred to the May 17 letter. I did not know about the June 13, open meetings complaint. I told the Mayor that I did not respond. The City hosted a workshop on open meetings at which Mr. Thompson and Jon Fleischaker presented a talk on the open meetings law. Nothing came out of the meeting which indicated the City was doing anything inappropriate. A few days after the meeting, the Mayor called and said that Mr. Thompson had renewed his demand for a response to his letter. When your fax of his complaint arrived at my office, Mr. Thompson's May 17 letter was by my computer for response. Knowing Mr. Thompson well, I should have called him long ago. I would have learned of the confusion.
Turning to the substantive allegation in Mr. Thompson's complaint, Mr. Perkins observed:
Council member David Lusby moved for the Council to enter closed session concerning "the acquisition of property, the public discussion of which could adversely affect the cost." After Council member Thompson's second of the motion, the Council unanimously approved the motion.
Upon proper motion, second and unanimous vote, the Council re-entered open session. Council member Lusby, with second by Council member Hawkins, moved approval of the purchase. The Council voted five (5) to three (3) to purchase the ten (10) acres Henry property discussed in the closed session. The Henry property, its appraisal, price and sale terms were the specific matters discussed in closed session. The offer on the table was an offer extended by the Mayor, through me, subject to Council approval. The Council had previously voted five (5) to four (4) on similar purchases.
Mr. Thompson disputes the Council's right to discuss the property in closed session only to re-enter open session and purchase it. In the closed session the Council discussed its three options. It could refuse to purchase the property, counter the offer, or approve the offer. The Council did not know the specifics of these options prior to entering closed session.
Had the Council known the terms of the offer and either agreed to or disagreed with them prior to the call for a closed session, there would have been no justification or legal basis for the closed session. The Council did not know the terms prior to the meeting. How could they without having conducted a prior called meeting or an illegal meeting or series of meetings at which the terms were discussed? Without the Council having previously discussed the proposed terms of the Henry property sale, only a closed session discussion could prepare the Council for their vote. If the Council had interest in the property, but disagreement with the terms, public discussion at the May meeting would have adversely affected the cost of the property.
For these reasons, the council refused to implement the remedial measures proposed.
Having considered the arguments advanced by the Georgetown City Council in support of its closed session discussion of the purchase of the Henry property, 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 affirm the actions of the council on the basis of KRS 61.810(1)(b), but find that its failure to respond to Mr. Thompson's complaint constituted a violation of KRS 61.846(1).
In 00-OMD-64, this office analyzed KRS 61.810(1)(b) in considerable depth, affirming the Henderson City Commission's reliance on the exemptions as the basis for conducting a closed session discussion relating to the acquisition of a piece of property where "the proposed purchase price was not publicly disclosed prior to the closed session, was contingent on a collateral agreement which affected the property's value to the city, and was subject to the Commission's approval." 00-OMD-64, p. 5. We distinguished the facts in that appeal from the facts giving rise to 95-OMD-57 and 99-OMD-104. In our view, 00-OMD-64 is dispositive of the issue before us.
In 95-OMD-57, the Attorney General held 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 on a particular date and at a particular price, for property acquired by the state. In 99-OMD-104, the Attorney General held that the Marion City Council was not justified in conducting a closed session discussion of the purchase of property when a purchase price had been agreed to, budgeted for, and publicized. In these decisions, we were unable to discern how the price of the property at issue could be affected by public disclosure since the terms of the purchase had been previously disclosed. "Under these circumstances," we concluded, "confidentiality could afford no material advantage to the public interest. " 00-OMD-64, p. 5.
In 00-OMD-64, the Attorney General analogized the appeal before him to a series of open meetings appeals construing KRS 61.810(1)(b) and affirming public agency reliance on the exception. KRS 61.810(1)(b) excludes from the general rule of open and public debate:
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 an early open meetings decision, the Attorney General recognized that:
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 [under this exception]. Confidentiality is only permissible when the public interest will be directly affected financially.
OAG 80-530, p. 3. There, the question was posed as a hypothetical.
However, in an least four open meetings decisions issued in the past decade, this office affirmed agency reliance on KRS 61.810(1)(b) as the basis for closed session discussion of the purchase or sale of real property. In 93-OMD-56, we held that the 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 a hospital building and the property on which it was located since a private entity had made an offer to purchase the hospital, and the Board feared that public deliberations might cause the buyer to adopt a "take it or leave it" stance in negotiations. Similarly, in 94-OMD-22, we affirmed the Anderson County Board of Education's closed session discussion relating to the acquisition of property since publicity was likely to affect the property's value. In 98-OMD-147, we held that the City of Sebree properly relied on KRS 61.810(1)(b) in conducting a closed session discussion of the sale price offered in settlement negotiations. Finally, in 00-OMD-64, we affirmed the Henderson City Commission's discussion in closed session of the purchase of property since the proposed purchase price had not been disclosed, was subject to collateral agreements affecting the value of the property, and was contingent on the Commission's approval. At page 5 of 00-OMD-64, we recognized that "discussions in open session of the commissioners' objections and concerns relative to the negotiated price might well have compromised the public's financial interests."
We believe that the facts of the appeal before us are more closely akin to the facts of the appeals that were resolved in favor of the public agencies in 93-OMD-65, 94-OMD-22, 98-OMD-147, and, in particular, 00-OMD-64. Here, as in 00-OMD-64, a previously undisclosed offer for the purchase of property was on the table, but that offer was contingent on the city council's approval. It is by no means clear that the council entered the closed session with the intent to approve the purchase. As in 00-OMD-64, the council could have returned to open session and voted to reject the offer or modify the terms of the offer. Public discussion of these options might well have compromised a significant governmental interest by signaling the council's specific intentions with respect to the property, or stimulating interest in the purchase of the property by competing interests. In 00-OMD-64, a memorandum and accompanying resolution had been drafted prior to the meeting at which the contested closed session occurred so that if the city's legislative body approved the purchase, it could readily do so in open session by formally adopting the resolution as final action on the matter. Our conclusion was not altered by this fact inasmuch as the purchase was still negotiable and specifically conditioned on legislative approval. In the appeal before us, the Georgetown City Council had not taken this or any other step toward resolution of the issue before it that might arguably be indicative of a predetermined outcome. We believe that the facts clearly support the council's reliance on KRS 61.810(1)(b) as the statutory basis for its closed session.
Mr. Thompson attaches great significance to the term "future" in the cited exemption insofar as the exemption only permits closed session deliberations on the future acquisition or sale of real property. It is his position that because the council immediately voted to approve the purchase upon returning to open session, publicity could not have affected the purchase price. As noted above, the record is devoid of evidence that the council went into closed session with the intent to approve the purchase or that the outcome of its deliberations were otherwise predetermined. And, as noted, the council might have voted to reject the offer or modify its terms. To the extent that the purchase of the Henry property could not be consummated until the offer on the table was approved by the council, acquisition of the property was prospective, or in the future, when the council conducted its May 16 closed session, pursuant to KRS 61.810(1)(b), to deliberate its various options. Compare 01-OMD-45 (holding that invocation of KRS 61.810(1)(b) to discuss renovation and remodeling of property that had already been acquired, rather than on its purchase or sale, "ignores the first condition of exemption (1)(b), that the agency be engaged in deliberations on the future acquisition or sale of real property" ). We do not find Mr. Thompson's argument persuasive.
We do, however, concur with Mr. Thompson in his view that the Georgetown City Council's disposition of his open meetings complaint was procedurally deficient. The council's failure to respond in writing, and within three business days, to his complaint constituted a violation of KRS 61.846(1). That statute provides, in relevant part:
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 offer, or under his authority, and shall constitute final agency action.
Mr. Perkins offers an extensive explanation for the council's failure to respond in a timely fashion to Mr. Thompson's complaint, but we cannot agree that the Mayor's absence or Mr. Perkins's oversight mitigates the violation. Just as the absence or unavailability of a public agency's records custodian does not toll the agency's statutory deadline for response, neither does the absence of the Mayor. 00-ORD-226, p. 2 (holding that "in the event the official custodian is absent, 'an individual should be appointed as acting custodian to respond to open records requests in a timely fashion' ") citing 94-ORD-86, p. 4, 96-ORD-185, and 98-ORD-161. Both the Open Records Act at KRS 61.880(1) and the Open Meetings Act at KRS 61.846(1) clearly establish that the agency's response shall be issued by the official custodian or presiding officer, respectively, "or under his authority." In the absence of these individuals, an alternate must be appointed to discharge the agency's statutory duty. It is equally important that public agencies promptly respond to both open meetings complaints and open records requests.
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 proceeding.