Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Barbourville City Council violated the Open Meetings Act at its special called meeting of October 27, 2003, when it went into executive session under authority of KRS 61.810(1)(c). For the reasons that follow, we find that the City Council properly relied on the cited exception in conducting an executive session to engage in mediation discussion of pending litigation.
On October 27, 2003, Melissa Jones, News Director WKDP, and WCTT, radio, Corbin Kentucky, apparently prior to the meeting, submitted the following complaint to Mayor Patrick Hauser and all Barbourville City Council members:
Please consider this an official notice that our news department feels that if the discussion concerning the occupational tax money is held during executive session at the special called session of the Barbourville City Council on October 27th at 6:00pm, that the Barbourville City Council would be violating the Kentucky meetings law. While Circuit Judge Daniel Venters did order mediation, it is our belief that Judge Venters did not order a clear violation of the Sunshine law. A remedy to this problem would be to hold the discussion on how to divide and spend the occupational tax money during an open session. Since the occupational tax money is public money we feel that it should not be discussed in private. Thank you in advance for your attention on this matter.
In a response issued on October 29, 2003, Kenneth M. Boggs, Barbourville City Attorney, denied the allegations in the complaint. In his response, Mr. Boggs advised:
As City Attorney for the City of Barbourville, I have been requested to respond to your fax to Mayor Hauser and the members of the Barbourville City Council concerning the alleged open meetings violation at the special call session of the Barbourville City Council on October 27th at 6:00 o'clock p.m.
The special call meeting was for the purpose mediating the pending litigation between the City of Barbourville and the Knox County Fiscal Court. As such it was governed by KRS 61.810(1)(c). KRS 61.810 deal with exceptions to open meetings. KRS 61.810(1)(c) provides for an exception to the open meetings law for discussion of proposed or pending litigation against or on behalf of the public agency.
The use of occupational tax income is a matter of great public concern and we appreciate the interest your stations have expressed in the outcome of the meetings. I do not believe that there has been any violation of the open meetings law. The mediations efforts by the parties were successful and an agreement has been reached resolving the litigation. I seriously doubt that those mediations efforts would have been successful if the meeting had been open to the general public has resulted in creating a circus atmosphere.
Once again, thank you for your interest. I trust that this response apprises you of our position in this matter. If you have any additional questions, please feel free to contact me.
On October 10, 2003, Ms. Jones initiated an appeal to this office. In her letter of appeal, stated in relevant part:
It is our opinion that the litigation was no longer pending; rather mediation was part of Judge Daniel Venters' ruling on the matter. More importantly, the subject discussed was how the Barbourville City Council and Knox County Fiscal Court would divide the occupational tax money. The Barbourville City counsel requested the "mediation" . It is our opinion that public officials should not be allowed to use the veil of litigation as a tool to be able to discuss things in private, which are not normally acceptable under the open meetings law.
In a supplemental response submitted to this office after commencement of the appeal, Mr. Boggs elaborated on the issues raised in the appeal. In his response, he advised in pertinent part:
Simply put, Ms. Jones is mistaken in her opinion that litigation was no longer pending regarding the occupational tax for Knox County and the City of Barbourville. While Judge Venters did, in his October 14, 2003 Order, find that there was no issue as to the population of Knox County in 1997 and the Legislature's amendment of KRS 68.197(4) was not retroactive, the issue of previously collected tax revenues by the county was unresolved. In addition, the County of Knox had vowed in a local newspaper to appeal the ruling of Judge Venters stated above.
Furthermore, prior to the hearing on September 24, [2]003 before Judge Venters, both parties agreed to mediate this matter in executive session. The Judge then ordered mediation at the suggestion of counsel.
It should be further noted that both counsel for the city and counsel for the county expressed their opinions to Ms. Jones that the mediation, which was about to begin, fell clearly under the exception to the Open Meeting law found in KRS 61.[8]10(c).
It is interesting to note why the County of Knox was not subject to the appeal from WKDP and WCTT news department regarding this open meeting question.
Finally, it is the opinion of the undersigned and others that the successful mediation of this case would not have occurred had it not been conducted in closed session of both government bodies.
We are asked to determine whether the Barbourville City Council violated the Open Meetings Act at its special called meeting of October 27, 2003, when it went into executive session under authority of KRS 61.810(1)(c) to engage in mediation discussion of pending litigation. For the reasons that follow, we find that the City Council properly relied on the KRS 61.810(1)(c) in going into closed session and its actions were proper and consistent with the Open Meetings Act.
With respect to the litigation exception, codified at KRS 61.810(1)(c), this office in 98-OMD-105, p. 3, 4, observed:
At KRS 61.810 the General Assembly declared:
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]
Recognizing that there are extraordinary circumstances which may warrant a public agency in conducting its business in a closed session, the General Assembly has carved out a number of exceptions to this general rule. Among those meetings which are excepted from the general rule of openness are meetings involving "discussions of proposed or pending litigation against or on behalf of the public agency. " KRS 61.810(1)(c). This, along with the other eleven 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).
In Floyd County Board of Education v. Ratliff, the Kentucky Supreme Court construed KRS 61.810(1)(c), reasoning:
[T]he drafters of the legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics. Obviously, anything that would include the attorney-client relationships would also fall within this exception. The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply 'any time the public agency has its attorney present' or where the possibility of litigation is still remote. See Jefferson County Board of Education v. The Courier-Journal, Ky.App., 551 S.W.2d 25 (1977). As properly noted in Jefferson County Board of Education, supra, the matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of "everything tangential to the topic."
Floyd County Board of Education at 923, 924.
In 93-OMD-119, pages 3 and 4, we expressed a standard for determining the propriety of an agency's reliance on KRS 61.810(1)(c), stating:
When the public agency has become a party plaintiff or defendant in a lawsuit, when a public agency has been threatened with litigation, or when the chance of litigation involving that agency is more than a remote possibility, the agency can then legally and properly invoke the exception set forth in KRS 61.810(1)(c). The public agency can at that time discuss in a closed session such matters as strategy, tactics, possible settlement and other matters pertaining to that case or that anticipated or probable case.
See also 92-OMD-1728 (holding that Highland Heights City Council properly conducted closed session to discuss strategy, tactics, and the possible settlement of condemnation proceedings against the city).
In the appeal before us, Mr. Boggs, on behalf of the City Counsel, advised that litigation regarding the occupational tax for Knox County and the City of Barbourville was still pending at the time of the meeting. He indicated the issue of previously collected tax revenues by the county was unresolved. He stated that, prior to the hearing on September 24, 2003 before Judge Venters, both parties agreed to mediate this matter in executive session and the Judge then ordered mediation at the suggestion of counsel.
The record before us supports the City's position that it was warranted in conducting a closed session to engage in mediation discussion of the possible settlement of the then pending litigation and thus, the mediation discussion fell squarely within the parameters of KRS 61.810(1)(c). 93-OMD-119; 92-OMD-1728. Accordingly, we conclude that the City Council did not violate the Open Meetings Act in conducting the closed session.
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.
Melissa JonesEncore Communications 821 Adams RoadCorbin, KY 40701
W. Patrick Hauser, MayorCity of Barbourville196 Daniel Boone DriveP.O. Box 1300Barbourville, KY 40906-5300
Kenneth M. BoggsCity Attorney402A Court SquareP.O. Box 606Barbourville, KY 40906