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 Hopkins County Fiscal Court complied with KRS 61.815(1)(a) prior to conducting a closed session to discuss litigation at its October 2, 2003 meeting. For the reasons that follow, we find that the fiscal court did not fully comply with KRS 61.815(1)(a) and that its partial noncompliance constituted a violation of the Open Meetings Act.
On October 2, 2003, Elbert Powell submitted a written complaint to Hopkins County Judge/Executive Patricia Hawkins in which he alleged that the fiscal court did not satisfy each of the requirements of KRS 61.815(1)(a) before retiring to executive session. Specifically, Mr. Powell asserted:
[Y]ou made a decision to go into closed session to discuss possible litigation. That is all you said. In my opinion, under KRS 61.815(a) [sic], you did not complete the three steps to go into closed session.
As a means of correcting the alleged violation, Mr. Powell proposed that the fiscal court "justify this situation" or explain "how [the court] plan[s] to remedy this situation."
In a response dated October 6, 2003, Judge Hawkins defended the fiscal court's actions. She advised Mr. Powell:
[A] motion was called for to go into closed session to discuss litigation. The motion was made by Magistrate Riggs and was seconded by Magistrate Welch, followed by a unanimous vote.
Absolute litigation was discussed in closed session. As you are aware, fiscal courts are allowed to discuss litigation in closed session.
Judge Hawkins stated that she had forwarded a copy of Mr. Powell's complaint to Hopkins County Attorney Bob Moore, who had attended the meeting at which the alleged violation occurred, and provided Mr. Powell with a copy of a letter from Mr. Moore analyzing his complaint. The pertinent portion of Mr. Moore's letter to Judge Hawkins follows:
Not having reviewed the tape of the court session, I can only go by memory. If my memory serves me correctly, I think that the announcement to go into closed session to discuss litigation was made and that a vote to go into closed session was made in open court. Mr. Powell is probably complaining because we did not cite the specific statutory subsection in KRS 61.810 which authorized a closed session. This has come up before and I believe Chris Gardner brought it up, but said it was unnecessary to give the specific subsection because everyone knew that possible pending litigation was certainly within the exceptions.
From my rememberance of the situation on October 2, this is the only thing that I can think of that might be a technical violation of the open meetings law. You can remedy it in the future by having a "cheat sheet" that gives you the specific numbers for the four areas we normally use to go into closed session . . . .
Shortly thereafter, Mr. Powell initiated this appeal, "requesting a ruling . . . on the closed session discussed in the letters."
In supplemental correspondence directed to this office following commencement of Mr. Powell's appeal, Mr. Moore elaborated on the fiscal court's position. He observed:
Mr. Powell's appeal letter is as obscure and equivocal as his original complaint. In his appeal letter he simply states that Judge/Executive Hawkins did not answer his question to his satisfaction. With regard to this original complaint dated October 2, 2003, both Judge/Executive Hawkins and I had to guess and speculate at what he thought was wrong with going into the closed session.
There is probably little that either Judge Hawkins or I could add to Mr. Powell's appeal that is not contained in the letters that he already has in his possession.
I would like to point out that Mr. Powell does have certain responsibilities under KRS 61.846(1) in as much as the complaint shall state the circumstances which constitute an alleged violation of the Act and shall state what the public agency should do to remedy the alleged violation. Neither his original complaint nor his appeal meet these minimal statutory requirements.
On October 15, 2003, Judge Hawkins notified this office:
[T]he Hopkins Fiscal Court will in the future have a list of the specific sections of the Kentucky Revised Statutes which allow for fiscal courts to go into closed session as a reference guide during fiscal court meetings.
In closing, Judge Hawkins noted that "[u]pon future motions a request for the specific K.R.S. will be addressed prior to action, and the court clerk will be instructed to record the statute within the fiscal court minutes." In our view the implementation of these remedial measures will not bring the Hopkins County Fiscal Court into full compliance with the requirements of KRS 61.815(1)(a).
KRS 61.815(1)(a) provides:
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.
The express purpose of this, as well as the other provisions of the Open Meetings Act, "is to maximize notice of public meetings and actions [and t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 922 (1997). With specific reference to KRS 61.815, the Supreme 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 (emphasis added).
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), this office has determined that notification which does not include a statement of the specific exception(s) relied upon to conduct a closed session, a description of the general nature of the business to be discussed in, and the reason(s) for, the closed session is inadequate. 00-OMD-47; 00-OMD-64; 01-OMD-181; 02-OMD-200. Although we have 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 assess the propriety of the agency's action." 00-ORD-47, p. 6.
Clearly, "litigation" does not satisfy this standard. Nor does "litigation" accompanied by a reference to KRS 61.810(1)(c). The requirement that the agency give notice of "the specific provision of KRS 61.810 authorizing the closed session" was added when the Open Meetings Act was amended in 1992, but does not supplant the agency's duty to give 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. Together, these requirements import a legislative resolve to enhance the public's right to monitor public official conduct in a public meeting.
The Hopkins County Fiscal Court did not identify the general nature of the business to be discussed in its October 2 closed session and made only vague reference to "litigation" as the reason for the closed session. Although the fiscal court has agreed to give notice of the specific exception authorizing closed sessions in the future, we conclude that this is not enough. The fiscal court must not only identify the exception but must also describe the business to be discussed in closed session with sufficient specificity to enable the public to assess the propriety of its action. In the appeal before us, the fiscal court did not indicate whether the litigation to be discussed in closed session was proposed or pending, whether disclosure of the identity of the party or parties to the litigation would somehow compromise the fiscal court's litigation posture, or in any other manner state the reason for the closed session and the general nature of the business to be discussed with sufficient specificity to enable the public to assess its action. As this office has observed, "[T]he Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of the language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed" so as to avoid defeating the purpose which necessitated the closed sessions. 00-OMD-47, p. 6. To the extent that the Hopkins County Fiscal Court did not strictly comply with KRS 61.815(1)(a) as construed in Ratliff, above, we find that its actions violated the Open Meetings Act.
We reject the fiscal court's argument that Mr. Powell's open meetings complaint and appeal were obscure and equivocal. Mr. Powell is not required to specifically identify the statute allegedly violated, but need only "state the circumstances which constitute [the] alleged violation . . . ." KRS 61.846(1). Although the remedy he proposed only addressed the claimed violation, he "state[d] what the public agency should do to remedy" it, namely, justify the fiscal court's actions or explain what remedial measures the fiscal court will implement. The fiscal court does not appear to have had any trouble responding to Mr. Powell's complaint and we must therefore infer that he adequately stated the circumstances of the alleged violation and the remedy.
Additionally, we reject the argument that the violation committed by the fiscal court was merely technical. At page 3 of 00-OMD-114, this office held:
The Act itself does not recognize a class of violations of lesser gravity than the remaining class of violations, and therefore capable of being dismissed as merely "technical."
Here, as in 00-OMD-114, the fiscal court's omissions prior to entering closed session were contrary to the basic policy of the Open Meetings Act, codified at KRS 61.800, "that the formation of public policy is public business . . . ."
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.
Elbert PowellP. O. Box 601116 South Hopkinsville StreetNortonville, KY 42442
Patricia HawkinsHopkins County Judge/Executive56 North Main StreetMadisonville, KY 42431
Robert MooreHopkins County AttorneyHopkins County Courthouse25 East Center StreetMadisonville, KY 42431