04-OMD-039 | KOGC

Opinion

Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Meetings Decision

The question presented in this appeal is whether the Louisville Metro Council violated the Open Meetings Act by holding closed session discussions under authority of KRS 61.810(1)(c) at two meetings conducted on February 2, 2004. For the reasons that follow, we find that the record on appeal does not support the claimed violations.

On February 3, 2004, attorney Jon L. Fleischaker submitted a written complaint to the Louisville Metro Council, through its attorney, Scott Lilly, 1 on behalf of Mr. Fleischaker's client, The Courier-Journal. In that complaint, The Courier alleged:

On February 2, 2004, the Council held two meetings concerning a proposed ordinance restricting adult entertainment. The Council had previously planned to discuss the proposed ordinance in small groups in an attempt to circumvent the Open Meetings Act. When a reporter objected to that plan, the Council agreed to hold public meetings. However, Council member Hal Heiner asked that the Council members enter into executive committee to discuss pending litigation involving adult businesses. Heiner indicated that the closed meetings would be to talk about how the proposed ordinance relates to ongoing litigation.

During both of the meetings on February 2, 2004, the council entered into closed session. The Council discussed -- in one or both of the closed sessions -- the proposed ordinance, including the policies underlying it. A reporter outside the door could hear you explain why a list of studies that found ties between adult entertainment and crime was included in the ordinance. This discussion is clearly one of public policy and only remotely or tangentially related to litigation.

Relying on the legislative statement of policy codified at KRS 61.800 2 and the Kentucky Supreme Court's decision in Floyd County Board of Education v. Ratliff, Ky. 955 S.W.2d 921 (1997), The Courier maintained that past and pending legal challenges to adult entertainment ordinances provided no justification for the Council's closed session discussion of the proposed adult entertainment ordinance since KRS 61.810(1)(c) "is not to be construed to apply any time the public agency has its attorney present or . . . expanded to include general discussions of everything tangential to the topic." As a means of remedying the alleged violation, The Courier proposed that the Council "issu[e] a public apology for the violation and . . . disclos[e] the minutes, recordings and transcripts of the closed session. "

In a response dated February 6, 2004, the Council defended its actions. On behalf of the Council, Mr. Lilly "provide[d] a brief litigation and legislative history as a background." He identified three active cases challenging adult entertainment ordinances in the old City of Louisville and Jefferson County and the recently merged Metro Government, which prompted the Metro Council to substantially revise its adult entertainment ordinance in March 2003 and to consider an omnibus revision to the ordinance which was given its first reading on January 22, 2004. Mr. Lilly indicated that it was at the January 22 meeting that Frank Mascagni, an attorney representing several plaintiffs in one of the active cases challenging the adult entertainment ordinance, expressed his "intention to challenge the omnibus revisions" in what the Metro Council "[could] only . . . interpret[] as a threat of litigation." It was the Council's position that this litigation and legislative history "demonstrates the . . . inextricable relationship between the various matters being litigated and the legislative response thereto in the form of ordinal revisions, including the most recent omnibus amendments."

Responding to each of The Courier's allegations, Mr. Lilly rejected the notion that "the so-called 'meetings' were . . . subject to the Open Meetings Act" insofar as "by [his] count:"

Only four members of the Council attended the "meeting" on the morning of February 2 . . ., all of whom either attended or were absent from the afternoon meeting [, and] only thirteen Council members attended the February 2 afternoon meeting which includes the members who attended the morning meeting.

Thus, he maintained, "the sum of the Council persons present at the two meetings did not equal a quorum, " and therefore did not trigger the requirement of an open meeting found at KRS 61.810(2). 3

Turning to the allegation that the closed session discussions at each of the February 2 meetings were not authorized by KRS 61.810(1)(c), Mr. Lilly quoted extensively from Floyd County Bd. of Education v. Ratliff, above at 923-924, for the proposition that the exception:

appl[ies] to matters commonly inherent to litigation such as preparation, strategy or tactics. Obviously, anything that would include the attorney-client relationship would also fall within this exception. The statute expressly provides that the litigation in question need not be currently pending and may merely be threatened. However, the exception should not be construed to apply "anytime the public agency has its attorney present" or where the possibility of litigation is still remote. [Citation omitted.]

It was his position that discussions of the ordinance in the context of pending or threatened litigation, if such discussions occurred, 4 are "include[d] in [the] attorney-client relationship[] . . . [and] fall within this exception." Ratliff at 924. In support, he cited Fiscal Court v. The Courier-Journal and Louisville Times, Ky., 554 S.W.2d 72 (1977), involving closed session discussions of threatened litigation by the League of Women Voters relating to a proposed county ordinance, wherein the Court opined:

Jefferson County Board of Education, [551 S.W.2d 25 (1977)] makes it clear that public bodies may discuss proposed or pending litigation with their counsel in executive session. Consequently, to the extent that the meeting of September 24 dealt with the implied threat of legal action by the League of Women Voters, it was not illegal. The decision of the trial court to the contrary was erroneous.

Id. at 73.

With reference to the remark overheard by The Courier reporter, Mr. Lilly stated:

Your February 3 letter notes that your reporter, although "outside the door", heard me ". . . explain why a list of studies that found ties between adult entertainment and crime was included in the ordinance. " According to your perception, such discussion is ". . . one of public policy and only remotely or tangentially related to litigation." Again, I respectfully disagree. In the first instance, the litigation and legislative history earlier recounted patently demonstrates the inextricable relationship between court challenges and ordinal responses to amend offending regulations. Second, Mr. Mascagni directly threatened litigation over the omnibus revisions. Third, your reporter's ineffective eavesdropping apparently failed to understand the context of my statement and he did not hear what came before or after it. I am sure you do not expect me to breach the attorney-client privilege to explain the relevance of the statement to pending or threatened litigation. Suffice it to say, you should review Pap's A.M. v. City of Erie, 529 U.S. 277 (2000) and City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), two cases cited in the proposed amendment to Section 111.01(c), and perhaps you will perceive the litigative relevance of my statement. In any event, the Ratliff decision explicitly approves closed sessions for the purpose of preparations, strategy or tactics pertaining to litigation and "anything that includes the attorney-client relationships would also fall within this exception." Ratliff, supra, p. 924.

In closing, Mr. Lilly emphasized that "thorough and lengthy discussions of the ordinance's provisions and policy implications . . . occurred in [the open portion of] both the morning and afternoon sessions of February 2, 2004," and "that Mr. Mascagni unmistakably threatened litigation over the omnibus revisions, " declaring that The Courier's "presumption [that his] isolated comment overheard by [the] reporter during the closed afternoon meeting is 'tangential' to pending or threatened litigation is unfounded . . . . " On this basis, Mr. Lilly denied the allegations of the complaint and rejected the proposed remedies. As a conciliatory gesture, he agreed to provide The Courier with a copy of the materials he and First Assistant County Attorney William O'Brien used as a reference in their discussion of the litigation after redacting the comment section so as to avoid disclosure of litigation strategy.

On appeal, The Courier argued that the Louisville Metro Council "cannot meet its burden to prove that the claimed exception to the Open Meetings Act applies, "and therefore urged this office to find that the Council violated the Act. Elaborating on the underlying circumstances of the appeal, Mr. Fleischaker observed:

At a meeting of the Public Health/Safety Committee of the Council (the "Committee") on January 28, 2004, Assistant County Attorney Scott Lilly announced a plan to discuss the proposed ordinance in small groups for the express purpose of circumventing the Open Meetings Act. A reporter for the Courier-Journal objected to that plan. Nonetheless, the Council decided to conduct two meetings on February 2, 2004 concerning the proposed ordinance and that the meeting would be open to the public. ( See Notice, Exhibit C. 5) The fact that two meetings were scheduled on February 2 allowed Council members to attend either to be briefed on the ordinance.

Council members Hal Heiner, Bob Henderson, Robin Engel and Ron Weston attended the "open" portion of the morning meeting. Subsequently, Heiner announced that those Council members were entering closed session to discuss how the proposed ordinance related to ongoing litigation. The four Council members were later joined in the closed session by Council member Barbara Shanklin.

A total of thirteen Council members attended the afternoon meeting. . . . Again, the Council entered closed session to discuss the ordinance. Hal Heiner was the only council member present who had attended the morning meeting. Thus, a total of at least 17 of the 26 Council member attended one or both of the closed meetings on February 2, 2004.

It was The Courier's position that the presence of a quorum of Council members at the two meetings, coupled with the Council's "announced purpose of avoiding the Open Meeting Act," established a violation of KRS 61.810(1) and (2).

In response to the Council's defense of its closed session discussion, Mr. Fleischaker asserted:

The intent of the litigation exception is to allow a public agency to meet in executive session to discuss strategy concerning or settlement of a lawsuit or threatened lawsuit. The Attorney General in 93-OMD-119 held that, when a public agency is a party to litigation or is threatened with litigation, "[t]he 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." Thus, the litigation exception deals with public agencies in their capacities as parties or potential parties to litigation, not in their capacities as legislators. Here, however, the Council was not meeting to discuss litigation strategy or settlement possibility, but was discussing a proposed ordinance.

The litigation exception has never been interpreted to permit a legislative body to discuss proposed legislation simply because the legislation would be subject to challenge via litigation or because the legislation deals with a topic about which current litigation is pending. See, e.g., Floyd County Bd. of Educ. V. Ratliff, [citation omitted] (despite apparent threat of litigation, exception did not apply where school board went into executive session to consider a reorganization plan); Fiscal Court of Jefferson County v. Courier-Journal & Louisville Times Co., [citation omitted] (closed meeting of fiscal court with county attorney to discuss draft of proposed county ordinance was illegal). This situation is no different than a public agency meeting with legal counsel to discuss how any proposed ordinance might be interpreted in a subsequent legal proceeding or how a proposed ordinance complies with constitutional or statutory requirements. The fact that legal counsel participates and the issue involves a legal analysis of the proposal does not entitle the Council to meet in closed session to discuss matters relating to the proposed ordinance. The litigation exception is not to be construed to apply any time the public agency has its attorney present. See Jefferson County Board of Education v. The Courier-Journal, Ky.App., 551 S.W.2d 25 (1977). nor does the attorney-client privilege entitle a public agency to enter closed session. See OAG 97-1 ("Kentucky's Open Meetings Law does not contain this "legal advice" exception"); see also 03-OMD-178 (attorney's discussion with agency concerning constitutional requirements for a hearing did not fall within exception).

There is no question that, at the meetings involved in this appeal, the Council discussed the proposed ordinance and the reasons why certain studies linking crime to adult entertainment needed to be included in the language of the ordinance. The council's description of the proposed ordinance as a "legislative response" to the litigation challenging existing adult entertainment ordinances demonstrates that the meetings did not fall within the litigation exception.

On this basis, The Courier urged the Attorney General to issue a decision that the Council violated the Open Meetings Act "and an order that the Council publicly acknowledge the violation and forego future violations of this type." 6

In supplemental correspondence directed to this office following commencement of The Courier's appeal, Mr. Lilly amplified on his client's position, reiterating that the members of the Council in attendance engaged in a thorough and lengthy discussion of the ordinance in open session, and arguing that "it defies simple logic for the Council to engage in a full and complete review of the policy and legislative reasons for the proposed ordinance only to go into closed session under the guise of litigation to discuss them again." He denied making any statement in which he expressed the intent to circumvent the Open Meetings Act by discussing the proposed ordinance in small groups, emphasizing that the Council scheduled two open meetings on February 2 "at which they discussed the policy and legislative issues of the proposed ordinance" and "properly conducted two closed sessions to discuss pending and threatened litigation regarding adult entertainment regulations with their counsel." Rejecting "the newspaper's position . . . that the Open Meetings requirements are violated if any ancillary ordinal matter pertinent to the preparation, strategy, or tactics regarding pending or threatened litigation is mentioned in closed sessions, " Mr. Lilly concluded that The Courier builds its entire case around an isolated statement, "naked of any context, overheard by a . . . reporter during a properly called closed session of the Louisville/Jefferson County Metro Council."

Having considered the arguments advanced by the parties to this appeal, we affirm the Metro Council's position and conclude that the factual record does not support the claimed violation. Because the statement attributed to Mr. Lilly could, in our view, legitimately be made in the course of a discussion of proposed and/or pending litigation and was otherwise completely devoid of context, we find that the Council properly relied on KRS 61.810(1)c) in conducting closed session discussions at its February 2 special meetings.

We address first The Courier's contention that the Council violated KRS 61.810(1) and (2) at its February 2 meeting. This argument is premised on The Courier reporter's observation that at least seventeen of the twenty-six Council members attended one or both meetings and an unsubstantiated statement attributed to Mr. Lilly regarding a plan to discuss the ordinance in less than quorum groups to avoid the requirements of the Open Meetings Act. We find this argument unpersuasive.

As noted above, KRS 61.810(2) provides that a series of less than quorum meetings in which the sum of the members collectively attending constitutes a quorum, and which is held for the purpose of avoiding the KRS 61.810(1) requirement that all meetings of a quorum of the members of a public agency at which public business is discussed or action is taken must be open to the public, is subject to the latter requirement. In construing KRS 61.810(1) and (2), the Kentucky Supreme Court has declared that "[t]he 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 requirements of the Act." Yeoman v. Commonwealth of Kentucky Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998). Violation of the Open Meetings Act, insofar as it relates to "secret meetings" is thus predicated on two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken, and (2) a series of less than quorum meetings attended by members of the agency collectively constituting a quorum and held for the purpose of circumventing the requirements of the Act.

Because there is no proof in the record before us that a quorum of the Council met to discuss public business in private or met in number less than a quorum for the purpose of avoiding the requirements of the Act, we resolve this issue in favor of the Council. Accord, 02-OMD-107 (in the absence of evidence supporting allegation that a secret meeting or series of secret meetings occurred, and the mayor's affirmative statement that the commissioners did not meet secretly in a single meeting, or series of meetings, to avoid open meetings requirements, Attorney General finds no violation of the Act); compare 00-OMD-63 (evidence supporting allegation of a series of less than quorum meetings, and consisting of county judge/executive's statement at a press conference that he had conducted separate meetings with each of the members of the fiscal court to discuss public business, resulted in Attorney General's determination that fiscal court violated KRS 61.810(2)).

The record reflects that the February 2 meetings were properly noticed to the public and the public invited to attend. No secret meeting occurred on that date. Moreover, the record does not establish any subjective intent on the part of the participants in these meetings to avoid the requirements of the Act. Accordingly, we find that the Council's actions did not fall within the zone of prohibited conduct described in KRS 61.810(1) or (2). Whatever statements to this effect may have been made, the Council ultimately recognized its obligation to conduct open, public meetings and cannot be reproved on this basis.

Turning to the question of the propriety of the Council's closed session discussions, we decline The Courier's invitation to declare those discussions illegal based on a single statement overheard by a reporter and, as Mr. Lilly aptly notes, naked of any context. The parties to this appeal have provided an extensive and accurate assessment of the applicable law, and we will not unnecessarily lengthen this decision with a recitation of same. We believe that the protection afforded by KRS 61.810(1)(c), authorizing closed session discussions of proposed or pending litigation against or on behalf of the public agency, and as construed by the Supreme Court in Floyd County Bd. of Education v. Ratliff, above, is broad enough to extend to closed session briefings by agency counsel on the strengths and weaknesses of a case, actual or threatened, based on legal precedent and in light of the status of current litigation. The fact that the actual or threatened litigation relates to an ordinance does not deprive the agency of the right, under the cited exception, to shield its litigation strategy from public scrutiny. We concur with the Council in its view that Fiscal Court v. The Courier-Journal and Louisville Times, above, supports this view to the extent that the Supreme Court recognized the agency's right to discuss the threat of legal action notwithstanding the fact that the threat related to a proposed ordinance. Compare, 93-OMD-119 (Board of Trustees of the Louisville Firefighters Pension Fund improperly conducted a closed session to discuss litigation which did not involve the Pension Fund but instead involved a similarly situated policemen's pension fund); 98-OMD-105 (Bourbon County Fiscal Court failed to make sufficient showing that it properly conducted closed session to discuss pending litigation) ; 00-OMD-219 (presence of third party who was not a party to litigation, not a lawyer, or employee of a lawyer, employed by the public agency that invoked the exception was inconsistent with invocation of exception for purposes of a confidential discussion of litigation strategy and tactics) ; 01-OMD-152 (closed session discussion centered on retaining legal counsel was not authorized by KRS 61.810(1)(c)); see also, 95-OMD-97; 01-OMD-130.

The Courier Journal does not complain that the Council failed to observe the formalities for conducting closed sessions codified at KRS 61.815, but instead objects to the content of the discussions held in those closed sessions, focusing on a single comment attributed to Mr. Lilly in which he may or may not have "explain[ed] why a list of studies that found ties between adult entertainment and crime was included in the ordinance, and asserting that "this situation is no different than a public agency meeting with legal counsel to discuss how any proposed ordinance might be interpreted . . . ." Respectfully, we disagree. Because Mr. Mascagni threatened legal action challenging the omnibus revision of the adult entertainment ordinance on January 22, following the ordinance's first reading, we believe the situation fully warranted the closed session discussions under authority of KRS 61.810(1)(c). We are firmly of the opinion that if such a comment was made, it could well have been made in the context of evaluating the strengths and weaknesses of the Council's case in the threatened litigation, a communication that clearly falls within the attorney-client privilege notwithstanding the fact that the client is a public agency. Accordingly, we find that the record on appeal does not support the claimed violation of the Open Meetings Act.

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.

Jon L. FleischakerDinsmore & Shohl, LLP14500 PNC Plaza500 West Jefferson StreetLouisville, KY 40202

N. Scott LillySecond Assistant County Attorney 531 Court Place, Suite 1001Louisville, KY 40202

Footnotes

Footnotes

1 It is unclear why The Courier-Journal submitted the complaint to Mr. Lilly instead of the Council's presiding officer per KRS 61.846(1). In so doing, however, The Courier implicitly waived any objection to Mr. Lilly's response to the complaint, notwithstanding the concluding sentence of KRS 61.846(1) which provides that the agency response "shall be issued by the presiding officer, or under his authority, and shall constitute final agency action."

2 KRS 61.800 provides:

The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.