Request By:
Tom Clifford
1127 Ed Monroe Road
Falmouth, KY 41040Mayor Gene Flaugher
230 Main Street
Falmouth, KY 41040-1223Henry Watson III
City Attorney
525 High Street, Rm. 328
Paris, KY 40361
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 Falmouth City Council violated the Open Meetings Act when it went into closed session at the end of its June 2, 2004, meeting "per KRS 61.810(b) [sic] (land acquisition) ." For the reasons that follow, we find that the council violated KRS 61.846(1) in failing to respond to the open meetings complaint alleging this violation, and KRS 61.815(1)(a) in failing to strictly observe the formalities for going into closed session. Further, we find that in responding to the open meetings appeal precipitated by these violations, the council failed to provide sufficient proof that publicity would be likely to affect the value of a specific piece of property thereby warranting invocation of KRS 61.810(1)(b).
In a letter dated June 28, 2004, the subject line of which reads, "Falmouth City Council violations of the Open Meetings Act, " Mr. Tom Clifford alleged that the council's closed session discussion of the purchase of the Ruber 1 property, for the purpose of constructing a wastewater treatment plant, constituted a violation of the Act. Mr. Clifford argued that any discussions occurring after May 5, 2004, "when the city council indicated that a purchase price for the Ruber property had been realized and is under option," should be conducted in an open session. As a means of remedying the alleged violation, Mr. Clifford proposed that the council "enter [] into the approved meeting minutes all discussions and actions taken past, present, and future, that do not fall between the legal parameters of the exceptions . . . ." Having received no response to his complaint, Mr. Clifford initiated this appeal on July 21, 2004. 2
In correspondence directed to this office following commencement of the appeal, Falmouth City Attorney Henry Watson III maintained that no violation of the Open Meetings Act occurred at the council's June 2 meeting and that no remedial action was appropriate. With reference to the allegation of procedural noncompliance, Mr. Wilson noted that he "did not take Mr. Clifford's letter of June 28, 2004, . . . to be a written complaint pursuant to KRS 61.846(1)," but orally responded to the concerns Mr. Clifford raised "at and following a meeting of the Falmouth City Council held on July 7, 2004." With reference to Mr. Clifford's allegation that the council did not observe the formalities for conducting a closed session, Mr. Watson apologized for the "fail[ure] to include the language, '. . . publicity would be likely to affect the value of a specific piece of property to be acquired,'" but referenced, without specific citation, "numerous opinions" of the Attorney General's Office approving the use of the term "personnel matters" whenever KRS 61.810(1)(f) is invoked. It was his position that:
Any failure to include the language of the statute regarding any impact on value is not a violation of the Open Meetings Act, that when the exception is invoked the use of the term 'land acquisition, ' has come to include the rationale about potential effect on valuation for the closing of the meeting, as well as the fact that purchasing land will be discussed.
Turning to the substantive issue of the council's reliance on KRS 61.810(1)(b) as the basis for its closed session, Mr. Watson explained that the city must construct a new wastewater treatment plant under certain topographical and engineering constraints. The city has identified, and entered into an option to purchase, "property from the Rubers within the area designated by the engineers as appropriate." He indicated that the city entered into an option to purchase the property at an agreed upon per acre price, rather than a contract for sale, because of geotechnical, archeological, and ecological contingencies. Results of forthcoming studies relative to these contingencies, Mr. Watson explained, "may very well have a great impact on whether or not the city purchases the property of the Rubers." Continuing, he advised:
If we determine that the Ruber's property is . . . inappropriate for use as a site for the WWTP, and we are forced to begin negotiations with other property owners, and perhaps eventually face taking their property by eminent domain. This is precisely the rationale behind the exception to the Open Meetings Act, which allows discussion of matters relating to the acquisition of real property where the value of the property may be impacted by what is discussed.
Although the minutes of the June 2 meeting do not contain any reference to comments Mr. Clifford attributes to the participants, Mr. Watson concluded that the council "will defer to [his] recollection" that the closed session discussion focused on geotechnical concerns. He maintained that "[t]his fits exactly the exception [relied upon] . . . because geo-tech is one of the potential 'war-stoppers' which would preclude the city from purchasing this property, and . . . require it to go elsewhere for purchase or condemnation of another property." Respectfully, we disagree.
To begin, the council's failure to respond to Mr. Clifford's open meetings complaint in writing, and within three business days, constituted a violation of KRS 61.846(1). Although the council did not recognize it as such, the complaint conformed, in all particulars, with the requirements set forth in the cited provision. It was addressed to the presiding officer of the council, Mayor Flaugher, stated the circumstances constituting the alleged violation of the Act, and stated what the council should do to remedy the alleged violation. The council's failure to identify Mr. Clifford's letter as an open meetings complaint does not mitigate the violation.
Similarly, we find that the council's failure to strictly comply with the conditions for conducting closed sessions, codified at KRS 61.815(1)(a), constituted a violation of the Act. That statute 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 [.]
With reference to 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 council's June 2, 2004, meeting do not reflect strict compliance with KRS 61.815(1)(a), and reject the council's argument that "the use of the term 'land acquisition, ' has come to include the rationale about potential effect on valuation." The council cites no decisions of the Attorney General supporting this proposition in either the present context, or in the context of closed session discussions occurring under authority of KRS 61.810(1)(f), and we are aware of none. The statute speaks for itself.
We turn now to the question of the propriety of the council's reliance on KRS 61.810(1)(b) as the exemption authorizing the council's closed session discussion. 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) ; 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); compare, 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); 03-OMD-047 (holding that Eddyville Riverport and Industrial Development Authority failed to demonstrate that public discussion was likely to affect the value of a specific piece of property to be sold).
The record before us reflects that a specific site has been selected for construction of a wastewater treatment plant and a per acre price agreed upon. The location of the site has been disclosed but not the per acre price, and the city has entered into an option to purchase with the current owners subject to certain contingencies. Feasibility studies are underway to determine if the property is suitable and the purchase should be finalized. Should the property prove unsuitable, for any of the stated reasons, the city will be "forced to begin negotiations with other property owners, and perhaps eventually face taking their property by eminent domain." The identity of these other properties has not been disclosed.
We find that the record on appeal does not support the city's position that public discussion is likely to affect the value of a specific piece of property, the Ruber property, because the price of that property has been agreed upon and will culminate in a sale, or no sale, based on studies which are underway. Compare, 00-OMD-64 (purchase price was contingent on collateral agreement which affected the property's value to the city and was subject to legislative approval). Moreover, the language of KRS 61.810(1)(b) does not support the city's position relative to the "purchase or condemnation of another property." These alternate sites do not qualify as "a specific piece of property" within the meaning of KRS 61.810(1)(b), and public discussion of the Ruber property is not likely to affect their value. It should be obvious to all that if the sale of the Ruber property is not finalized, the city will be required to look elsewhere to build the plant. Simply put, we fail to see how discussion of the Ruber property in an open forum will directly affect the public's interest financially. This being the threshold requirement for invocation of KRS 61.810(1)(b), we cannot affirm the city's reliance on the exemption. See, 03-OMD-047. We therefore find that the City of Falmouth improperly conducted a closed session discussion of the Ruber property at its June 2, 2004, meeting.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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 Current owners of the property.
2 In addition to the open meetings violations alleged, Mr. Clifford asked that this office review a series of non-open meetings questions and determine whether the city council is obligated to respond to same. Because our role in adjudicating open meetings disputes is confined to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," we do not address this portion of his letter of appeal.