Request By:
Susie Bennett
P.O. Box 688
Mt. Washington, KY 40047Ed Hilbert, Mayor
City of Mt. Washington
City Hall Annex Building
186 Brahnam Way
Mt. Washington, KY 40047Joe Wantland, Attorney
For City of Mt. Washington
P.O. Box 515
Shepherdsville, KY 40165
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 Mt. Washington City Council violated the Open Meetings Act when it went into closed session at its August 26, 2002, regular meeting. For the reasons that follow, we find that the evidentiary record before us does not support the claimed violations, with the exception of the council's failure to strictly comply with the KRS 61.815(1)(a) requirements for going into closed session.
On October 3, 2002, Susie Bennett and Cathy Michel hand delivered to Mt. Washington City Clerk Gale Parks a letter addressed to Mayor Ed Hilbert. In that letter, they alleged that the case of Autumn Glen Development LLC v. City of Mt. Washington, et al ., did not appear on the August 26 meeting agenda, "and no discussion took place [but] Mr. Joseph Wantland, City Attorney, made a statement instructing [Ms.] Parks . . . to amend the map from R1-agriculture to R2- residential." Continuing, they alleged:
There was not a motion made by any council member, and the City Council went into closed session. This was after the scheduled meeting and the motion was made off the record. Prior to amending the map, the decision had already been made by a committee of three. Four councilmen are required for a quorum. The agreed order had been signed by Judge Waller prior to this closed session on August 26, 2002. The general nature of the business to be discussed was not provided to the public. See KRS 61.805 to KRS 61.850.
On this basis, the complainants asserted that it "is against proper procedure for a committee of three to be appointed to decide the conditions under which the lawsuit was settled." 1 As a means of remedying the alleged violations, the complainants proposed that the original four to two vote to rezone the property stand, and that the tape of the August 26 meeting and the "agenda of the closed meeting, " be released to them. Having received no response to their complaint, Ms. Bennett and Ms. Michel initiated this appeal by letter dated October 10, 2002, and received on October 15, 2002.
In a letter directed to this office following commencement of Ms. Bennett's and Ms. Michel's appeal, Mt. Washington City Attorney Joseph J. Wantland denied the allegations contained in their complaint. He advised that the written complaint that was hand delivered to City Clerk Gale Parks on October 2 for service upon the Mayor had been marked "confidential letter." Because the Mayor was out of town and not expected to return until October 8, Ms. Parks asked whether the letter was an open records request and the complainants advised that it was not. Based on their statements, the decision was made not to open the letter or otherwise take action on it.
With regard to the alleged substantive violations, Mr. Wantland explained that the Bullitt Circuit Court entered an agreed order on August 23, 2002, resolving the legal dispute in Autumn Glen Development, LLC v. City of Mt. Washington, et al . He observed:
The date of the City Council meeting complained is August 26, 2002. Counsel for the City did not tell the Clerk to amend the city zoning map, the Circuit Court did. The Council was asked by Counsel to vote in public to confirm the action of the Circuit Court. This action and vote was public. The City denies any impropriety of the vote and the action taken on August 26, 2002. This action is recorded in the minutes of the Council's meeting of August 26, 2002. The meeting of August 26, 2002 complies with KRS 61.810.
The agenda of the meeting of August 26, 2002 was in writing and available to the public before August 26, 2002. . . A vote was had to have an executive session concerning litigation and property acquisition. A statement was made concerning the action of the Council in public, this statement complies with all requirements of KRS 61.810(b), (c).
In support, Mr. Wantland furnished this office with copies of the minutes of the August 26 meeting and the meeting agenda.
Additionally, Mr. Wantland advised:
The City denies that the suit was settled by the decision of two members of the Council. Without waiving any privilege, the suit was settled along the advice of Counsel for the City, one employed by the City and one employed by the insurance carrier for the City. Counsel made recommendations and the entire Council before August 23 (the date of the Court's order and three days before the August 26, Meeting) agreed to follow these recommendations. To the degree necessary and to protect the integrity of the City's position in litigation, this decision was made public at meeting prior to August 26, 2002 (August 12, 2002). The executive, closed, session of the meeting of August 26, 2002 was concerned with other litigation and the attempt of the City to obtain property adjacent to its sewer treatment plant.
The City does not agree with the factual representations of the letter of October 1, 2002. Each meeting of the City Council has a written agenda made available to the public. The agenda is posted on the City's web site. One may obtain a copy at City Hall. The minutes of each meeting are in writing are available to the public and also are posted on the City's web site. If the Council desires to enter "closed" session, a vote is taken on a motion to enter closed session and the reason for the "closed" session. Any action taken as a result of this meeting is voted in public, and a statement is made concerning the parameters of the closed meeting. On August 26, 2002 in closed session, the Council directed employees to follow the instructions of Council concerning the acquisition of the property. This action was reported publicly at the meeting on August 26, 2002. The Council did not report publicly the bidding instructions given to its employees. The Council is not required to do so.
Based on the foregoing argument, Mr. Wantland asserted that the council "did not violate any provision of the open meetings requirements at the meeting of August 26, 2002."
Although it is not entirely clear, it appears that the complainants' chief allegations pertain to the manner in which the council reached the decision to amend the city zoning map and its failure to observe the requirements for conducting a closed session by identifying the general nature of the business to be discussed in the closed session. 2 They maintain that a committee consisting of less than a quorum of the council members resolved the matter in violation of the principle that final agency action must be taken by a quorum. In addition, they maintain that the council discussed the matter in closed session without a proper motion and notice to the public of the general nature of the business to be discussed. On appeal, they also allege that the council violated the Open Meetings Act by failing to respond to their complaint in a timely fashion.
With regard to the latter issue, we note that a public agency's legal obligations upon receipt of an open meetings complaint are clear. KRS 61.846(1) provides in part:
The public agency shall determine within three (3) days, excepting Saturdays, Sunday, 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 requirement 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 Mt. Washington City Council does not dispute its legal obligation, but instead asserts that it had no way of knowing that the "confidential letter" submitted to the city clerk for service upon the Mayor was an open meetings complaint requiring immediate action. When queried by the clerk, neither Ms. Bennett nor Ms. Michel advised her of the urgency of its contents. Because it was marked "confidential, " she apparently believed she lacked authority to open it. Accordingly, we are unwilling to assign error to the council for its inaction.
With regard to the complainants' allegations concerning the manner in which the decision to amend the city zoning map was reached, we find that these allegations do not constitute a violation of "the provisions of KRS 61.805 to 61.850," and are therefore not cognizable under the Open Meetings Act. Such violations are predicated upon, for example, an agency's failure to give adequate notice of its special meetings, as required by KRS 61.823(2), (3), and(4)(a) and (b), its decision to conduct a closed session that is not authorized by KRS 61.810(1)(a) through (l), its failure to observe the requirements for conducting a closed session codified at KRS 61.815, or its failure to record minutes in contravention of KRS 61.835 . In sum, such violations are predicated upon how it conducts it meetings , not how it conducts its business . While we believe Mr. Wantland offers a plausible explanation for how and why this matter was handled as it was, this issue is not justiciable under the Open Meetings Act, and we again find no violation of the Act.
However, we find that the council's response, coupled with the minutes of the August 26 meeting, do not reflect strict compliance with KRS 61.815(1)(a) relative to its duties prior to going into closed session. That statute provides that prior to conducting a closed session authorized by KRS 61.810:
(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
(b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
In construing this provision, the Kentucky Supreme Court has observed:
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.
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997). KRS 61.815 is thus aimed at promoting the "express purpose" of the Open Meetings Act, namely, "to maximize notice of public meetings and action." Id. at 923; see also, 94-OMD-78 (holding that agencies which are not exempt per se from the requirements of the Open Meetings Act must observe these formalities before going into a closed session) ; 95-OMD-92 (holding that KRS 61.815 "clearly require(s) that certain things be done in a regular, open, and public session before the public agency can go into a closed or executive session) . "The failure to comply with the strict letter of the law in conducting meetings of a public agency, " the Supreme Court concluded in Ratliff , "violates the public good." Ratliff at 923, citing E.W. Scripps Co. v. City of Maysville, Ky.App., 750 S.W.2d 450 (1990).
In his response on behalf of the council, Mr. Wantland indicates that "a vote was had to have an executive session concerning litigation and property acquisition [and a] statement was made concerning these action of the Council in public . . . [that] complies with all requirements of KRS 61.810(1)(b) and (c)." The minutes of the August 26 meeting reflect:
Sam Beichler made a motion to enter into executive session at 7:05 p.m. to discuss possible litigation. Barry Armstrong seconded the motion. Motion passed. (Unan.)
Sam Beichler made a motion to reconvene open session at 7:58 p.m. Sid Griffin seconded the motion. Motion passed. (Unan.)
There was no action taken as a result of executive session.
It does not appear that the council cited the specific exception(s) it relied upon to conduct its closed session or that it identified the general nature of the business to be discussed in, and the reason(s) for, the closed session as required by KRS 61.815(1)(a). Although this office has recognized that "given the disparate nature of the twelve exceptions, there can be no bright line test for determining if specific and complete notification has been given," KRS 61.815(1)(a) contemplates notification that "include[s] 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 access the propriety of the agency's action.," 00-ORD-47, p. 6. Clearly, "possible litigation" and "property acquisition" do not satisfy this standard. To the extent that the Mt. Washington City Council did not strictly comply with KRS 61.815(1)(a), we find that its actions violated the Open Meetings Act.
We would be remiss in failing to note certain other concerns we have that are suggested in statements made by the council in its defense of the open meetings complaint. We hasten to note that we make no finding on whether these concerns rise to the level of open meetings violations, the concerns having not been presented to us in the formal appeal of the Council's actions. At page 2 of his response, Mr. Wantland states:
Counsel made recommendations and the entire Council before August 23 (the date of the court's order and three days before the August 26 meeting) agreed to follow these recommendations.
We note that KRS 61.810(2) now provides:
Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
On this issue, the Kentucky Supreme Court has observed:
The Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meetings requirement of the Act.
Yeoman v. Commonwealth, Health Policy Board, Ky. 983 S.W.2d 459, 473 (1998).
Further, Mr. Wantland notes:
On August 26, 2002, in closed session, the Council directed employees to follow the instructions of Council concerning the acquisition of property. This action was reported publicly at the meeting on August 26, 2002.
We note that KRS 61.815(1)(c) provides:
No final action may be taken at a closed session.
These provisions should be borne in mind in the conduct of public meetings of the Mt. Washington City Council.
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.
Footnotes
Footnotes
1 The complainants also identified at least one purported violation of the Open Records Act. Because they did not furnish this office with copies of their written records requests or written agency denials, if available, we do not address these allegations. KRS 61.880(2)(a).
2 The complainants vaguely alleged that these discussions occurred "after thescheduled meeting" and "off the record." The minutes of the August 26, meeting appear to disprove these allegations insofar as they reflect:
Joe Wantland, City Attorney, explained an agreed order signed by Judge Thomas Waller in regard to Autumn Glen Development, LLC v. City of Mt. Washington, directing the City Clerk to amend the City zoning map to reflect the subject 100.004 acres from Agricultural and R-1 to R-2 residential. Barry Armstrong made a motion to direct the City Clerk to follow the instructions of the Agreed Order in regard to Autumn Glen Development. Sam Beichler seconded the motion. Motion passes. (Unan.)
They further allege that the case did not appear on the meeting agenda as a topic for discussion. Inasmuch as this was a regular meeting, no agenda was required and although an agenda had voluntarily been prepared, the council was not required to restrict its discussion to items listed on the agenda. See, e.g., 01-OMD-175, p. 6 (holding 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 . . .").