Request By:
Robert D. White
Bob White Building
50 Industrial Park Rd.
Eddyville, KY 42038Marvin Lee Wilson
Law Offices of Choat & Wilson, P.S.C.
211 West Main Street
P.O. Box 890
Eddyville, KY 42038Jessie Hughes
Operations Manager
Eddyville Riverport & Industrial Development Authority
978 Port Authority Road
Eddyville, KY 42038
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 Lyon County Riverport Authority, now the Eddyville Riverport and Industrial Development Authority, Inc., violated the Open Meetings Act when it went into closed session at the end of its July 11, 2002, regular meeting, "per KRS 61.810(1)(b)." 1 For the reasons that follow, we find that the Authority violated KRS 61.815(1)(a) in failing to strictly observe the formalities for going into closed session and KRS 61.815(1)(d) in discussing matters that were not publicly announced prior to convening the closed session. Further, we find that because the Authority failed to demonstrate that public discussion was likely to affect the value of a specific piece of property to be sold, its reliance on KRS 61.810(1)(b) was misplaced.
On February 6, 2003, Robert D. White submitted a written complaint to Jessie Hughes, Operations Manager for the Authority, 2 in which he alleged that the Authority's July 11 closed session discussion constituted a violation of the Open Meetings Act. Specifically, Mr. White complained that the Authority violated KRS 61.810(1)(b), KRS 61.815(1)(a), and KRS 61.815(1)(d) as reflected in the following entry from the minutes of the meeting:
Motion made by Judge Lee to enter into executive session per KRS 61.810(1)(b) . Seconded by David and motion passed. Motion made by Judge Lee to come out of executive session. Seconded by David and motion passed. David made a motion to not take any action on the industrial park at this time. Judge Lee seconded the motion and the motion passed.
Based on this entry, Mr. White alleged that the Authority could not "legally go into a closed or executive session unless KRS 61.815(1)(a) was met and it was not met." As a means of remedying the alleged violation, Mr. White proposed that the Authority "discuss at a future meeting, in an open and public session, those matters that were discussed at the improperly called closed session on July 11, 2002," and declare null and void "any action taken as a result of the improperly called session. " In addition, Mr. White requested compensatory relief for the adverse financial consequences he suffered as owner of the industrial park.
On behalf of his client, the Eddyville Riverport and Industrial Development Authority, Inc., attorney Marvin Lee Wilson responded to Mr. White's complaint on February 10, 2003. Mr. Wilson denied any violation of the Open Meetings Act, explaining:
A review of the minutes of the July 11, 2002 meeting revealed that a motion was made by Judge/Executive J. D. Lee to enter into executive session per KRS 61.810(1)(b). That motion was seconded by David Young and the motion passed. The need to enter into the executive session was created by Mr. Kent Martin at the July 1, 2002 Eddyville City Council meeting wherein Mr. Martin requested the City fence your property, which is not in the City of Eddyville, and install two (2) 200-feet by 200-feet by 6-inch thick concrete pads and a fire hydrant thereon. He also requested a three-year option on ten (10) acres located directly behind the building currently owned by you. The ten (10) acre parcel is property owned by the Eddyville Riverport and Industrial Development Authority, Inc. KRS 61.810(1)(b) specifically allows for deliberations concerning acquisition or sale of real property by a public agency such as the Eddyville Riverport and Industrial Development Authority, Inc., formerly known as the Lyon County Riverport Authority.
For these reasons, he maintained that no violation had occurred and that "no remedial action is needed."
By letter dated February 18, 2003, Mr. White notified the Authority of his intent to appeal the denial of his complaint, identifying as the specific reasons therefor:
! The Authority's failure to strictly comply with KRS 61.815(1)(a) by giving notice in the regular open meeting of the general nature of the business to be discussed and the reason for the closed session;
! The Authority's failure to establish that publicity relating to the matter discussed in closed session was likely to affect the value of a specific piece of property to be sold and thereby satisfy both requirements of KRS 61.810(1)(b).
In addition, Mr. White complained that because "nothing was 'publicly announced' " as the general nature of the business to be discussed prior to entering closed session, "nothing could have been discussed." Noting that the Authority had acknowledged discussion of "Kent Martin and [Mr. White's] property" in the closed session, Mr. White maintained that the Authority's actions contravened KRS 61.815(1)(d), providing that "[n]o matter may be discussed at a closed session other than those publicly announced prior to convening the closed session. " We agree with Mr. White that the record on appeal reflects noncompliance with the requirements of KRS 61.815(1)(a) and (d) and a failure to make an adequate showing under KRS 61.810(1)(b).
KRS 61.815(1)(a) through (d) establish conditions for conducting closed sessions. These statutes provide:
(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 majority vote in open, public session.
(c) No final action may be taken at a closed session; and
(d) No matter may be discussed at a closed session other than those publicly announced prior to convening the closed session.
With reference to these provisions, and in particular KRS 61.815(1)(a), the Attorney General has opined:
[T]he Open Meetings Act . . . 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. In construing KRS 61.805 to 61.850, the Supreme Court observed:
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1987). With specific reference to KRS 61.815, the Court declared that prior to going into closed session, the public agency "must state the specific exception contained in the statute which it relied upon," and give "specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting." Id. at 924. 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.
00-OMD-64, p. 6; see also 02-OMD-166 and 02-OMD-200. 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.; see also 94-OMD-78 (holding that agencies which are not exempt per se from the requirements of the Open Meetings Act must strictly observe these formalities before going into 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) . We find that the minutes of the Authority's July 11, 2002, regular meeting do not reflect strict compliance with KRS 61.815(1)(a).
The minutes of the July 11 meeting reflect that Judge Lee moved to enter executive session "per KRS 61.810(1)(b)." The minutes do not reflect that he identified the general nature of the business to be discussed in, or the reason for, the closed session as required by KRS 61.815(1)(a) In response to Mr. White's open meetings complaint, the Authority indicated that the closed session was precipitated by Kent Martin, who, at the Eddyville City Council's July 1, 2002, meeting, made certain requests of the city as an apparent incentive to relocate his business in the industrial park, and who, in addition, requested a three-year option on ten acres proximate to the industrial park and owned by the Authority. Although the Authority referenced KRS 61.810(1)(b), noting that the exemption authorizes closed session "deliberations concerning acquisition or sale of real property by a public agency, " the authority did not indicate that publicity was likely to affect the value of that property. This belated description of the general nature of the business to be discussed in, and the reason for, the closed session was therefore itself deficient. Because no description of the business to be discussed was given in open session, the Authority may also be said to have violated KRS 61.815(1)(d), restricting matters to be discussed in closed session to those publicly announced prior to convening the closed session. 3
We turn now to the question of the propriety of the Authority's reliance on KRS 61.810(1)(b) as the exemption authorizing the closed session. That exemption permits agencies to conduct closed session:
[d]eliberations 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 construing this provision, the Attorney General has observed:
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. Confidentiality is only permissible when the public interest will be directly affected financially.
OAG 80-530, p. 3; see e.g., 93-OMD-56 (holding that 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 the hospital building and the property on which it was located since publicity would likely affect the value); 94-OMD-22 (holding that Anderson County Board of Education properly conducted closed session to discuss the acquisition of property since publicity would be likely to affect the property's value); 98-OMD-147 (holding that City of Sebree properly relied on KRS 61.810(1)(b) in conducting closed session discussion of sale price offered in settlement negotiations); 95-OMD-57 (holding 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 for property acquired by the state on a particular date and at a particular price); 99-OMD-104 (holding that Marion City Council was not justified in conducting a closed session discussion of the purchase of property on the basis of KRS 61.810(1)(b) when a purchase price had been agreed to, budgeted for, and publicized); 00-OMD-64 (holding that Henderson City Commission properly relied on exemption when the purchase price had not been publicly disclosed, was contingent on a collateral agreement which affected the property's value to the city, and was subject to the Commission's approval); 02-OMD-166 (holding that Georgetown City Council properly relied on exemption, when previously undisclosed offer for purchase of property was on the table, offer was contingent on council's approval, and discussion of various options in open session might have stimulated interest in the purchase of the property by competing buyers).
The record before us is devoid of evidence that publicity was likely to affect the value of the ten acres of real property owned by the Authority that are adjacent to the industrial park. Because "confidentiality is only permissible when the public interest will be directly affected financially," and neither the minutes of the Authority's meeting, nor its response to Mr. White's open meetings complaint, indicate how the value of that property would be affected by public discussion of Mr. Martin's request for a three year option to purchase, we find that the Authority's reliance on KRS 61.810(1)(b) was misplaced. The record reflects virtually no description of the business to be discussed, much less a description couched in sufficiently specific terms to enable the public to assess the propriety of the Authority's action. 00-OMD-64, p. 6. This is not to say that a case could not have been made by the Authority, only that it failed to make the case in this appeal. It is not for this office to speculate on the Authority's unstated rationale.
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 Minutes, Scheduled Monthly Meeting of the Lyon County Riverport Authority for July 11, 2002, at page 2.
2 Mr. White indicated that he was submitting his complaint to Mr. Hughes because the Authority's chairman, Ray Belt, had resigned and no successor had been named. He also submitted a copy of his complaint to Authority attorney Marvin Lee Wilson.
3 Violations arising under KRS 61.815(1)(d) typically occur when the agency directly or indirectly acknowledges discussion of matters tangential to the matter publicly announced in open session. See, e.g., 00-OMD-113 (holding that agency violated Act in discussing an executive order relating to the police department as a whole in closed session held for the purpose of discussing discipline of police officers). Here no description of the general nature of the business to be discussed in closed session was given in open session, and the ensuing closed session discussion contravened KRS 61.815(1)(d).