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 Windy Hills City Council violated the Open Meetings Act at its April 17, 2004, special meeting when it went into closed session under authority of KRS 61.810(1)(c). For the reasons that follow, we conclude that because the Council had a reasonable apprehension that litigation against it was threatened, it did not violate the Act in conducting a closed session under the cited exception. Whether all matters discussed in that closed session were properly characterized as "matters commonly inherent to litigation, such as preparation, strategy or tactics" is a closer question.
On July 2, 2004, Lynn Renau submitted a written complaint to Mayor Louis A. Phillips in which she questioned the Council's decision to conduct a closed session at its April 17 special meeting on the basis of KRS 61.810(1)(c) and threatened litigation. By way of background, Ms. Renau reminded Mayor Phillips that on March 14, he had emailed her asking that she substantiate emailed statements made to State Representative Scott Brinkman, and copied to him, concerning the Attorney General's involvement in the city's street repaving dispute and records access issues pertaining thereto. She explained that "complex family estate issues" prevented her from responding to Mayor Phillips' email until March 19 when she notified him that she was "unable to take the time to respond to your request since we have been advised to begin the extensive compilation of documents, letters and other materials to be used in upcoming litigation." Ms. Renau reminded him that on March 22 he emailed her to assert his entitlement to "substantiation of your allegation," but that no further communications were exchanged relative to this matter.
Continuing, Ms. Renau reminded Mayor Phillips that the April 12 Council meeting, which she characterized as "contentious, " took place with no announcement of a special meeting regarding threatened litigation, but that on April 16, she received a telephone call from a Courier-Journal reporter who received notice of the April 17 special meeting referencing the threatened litigation, and asking "what the threat of litigation is about." Ms. Renau advised Mayor Phillips that she told the reporter she "had no idea what it was about." She further advised him that on April 17, she delivered a letter to the city clerk, "making no mention of litigation," as the members of the Council arrived for the meeting. Ms. Renau did not stay for the meeting but reminded Mayor Phillips that shortly thereafter Foster Haunz, attorney for the City of Windy Hills, telephoned her husband to advise that she was welcome to attend the meeting "which was going into closed session. " Upon inquiry, Ms. Renau continued, Mr. Haunz told Mr. Renau that the purpose of the meeting was to discuss "Lynn's threat of litigation," to which Mr. Renau replied there was no threat of litigation. Nevertheless, she concluded, the Council proceeded to hold the meeting, retiring to closed session for some two hours "to craft the memo that was eventually dated April 23, 2004 and addressed to Homeowners of East and South Sides of Rudy Lane . . . [that] refers to 'litigation threatened.'"
It was Ms. Renau's position that her email referencing "upcoming litigation":
became a ruse to call a closed special meeting to discuss issues that those of us who will be permanently affected by the proposed sidewalk have not been allowed to discuss publicly or in detail directly with the Council . . . .
As a means of remedying the alleged violation, Ms. Renau proposed that Foster Haunz and Mayor Phillips explain their conduct to the Attorney General, The Courier-Journal, the Windy Hills City Council, and her, and that Mayor Phillips issue to her "a formal written apology, copied to the Windy Hills City Council, [ The Courier-Journal ], and the Attorney General's Office," for spreading "the untruth about 'threatening litigation' . . . ." Acknowledging that "[l]itigation may result from your administration's efforts to put a sidewalk along . . . Rudy Lane . . .," Ms. Renau asserted that "by no reasonable standards of accountability can my e-mail be construed as threatened litigation."
In a timely response directed to Ms. Renau, Mayor Phillips advised:
Your email of 3/19/04 referring to upcoming litigation made no reference to your mother's estate and since the proposed sidewalk project has been such a contentious issue with you, it was thought to pertain to this proposed project.
This appeal followed.
In supplemental correspondence directed to this office, Mayor Phillips elaborated on the Council's position. He explained:
Certainly, Renau did propose litigation against the city, although she now contends the litigation was with someone else. We only need to point out that in Renau's email to the City, a four line document, she referenced the sidewalk dispute and in the very next sentence she stated: I am unable to take the time to respond to your request since we have been advised to begin the extensive compilation of documents, letters and other materials to be used in upcoming litigation. Lynn.
Noting that all of the recipients of the email were involved in the sidewalk dispute, he maintained that "[t]he totality of the circumstances would lead any reasonable person to believe Renau was preparing to sue the city."
It was Mayor Phillips' position that the Council complied in full with KRS 83A.130 and the Open Meetings Act in advance of, and in the course of, the April 17 special meeting. On this point, he observed:
The meeting was called to order (in open session) and a motion was made to go into closed session, citing the specific section and subsection of KRS. That motion passed. This stopped the taking of minutes and allowed the City Council to discuss how they could best avoid litigation. It was suggested that the first thing that needs to be done is to stop and refute the false and malicious information being spread by the sidewalk opponents. At that point, the Council, on motion duly adopted, went back into open session to discuss the specifics of what information would be refuted and to set the facts straight. All discussions of policy, language, and the like were in open session.
While it is unclear how a full two hours could have been devoted to discussing "how [the Council] could best avoid litigation," we concur with the Council in its view that the totality of the circumstances was such that its members reasonably believed that litigation was threatened.
The mandate of the Open Meetings Act, codified at KRS 61.810(1), is as follows:
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[.]
"Public business" has been defined by the Kentucky Supreme Court as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."
Yeoman v. Commonwealth of Kentucky Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998). Among the twelve exemptions that have been carved out of the statutory mandate, in recognition of those extraordinary circumstances which may warrant a public agency in conducting public business in closed session, KRS 61.810(1)(c) authorizes agencies to conduct closed session "[d]iscussions of proposed or pending litigation against or on behalf of the public agency. " This, along with the other eleven exemptions 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). It is the opinion of this office that in light of the highly contentious nature of the proposed sidewalk project and the highly suggestive nature of the language Ms. Renau employed in her March 19 email, however unintentional, the Council was justified in its belief that litigation against it was imminent and in its reliance on KRS 61.810(1)(c) as the basis for its closed session.
In Floyd County Board of Education v. Ratliff, above, the Kentucky Supreme Court defined the parameters of KRS 61.810(1)(c), opining:
[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 relationship 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).
Floyd County Board of Education at 923, 924.
Numerous opinions of the Attorney General reflect this view. In OAG 78-227, this office held that KRS 61.810(1)(c) is intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to litigation, is threatened with litigation, or anticipates initiating litigation on its own behalf. We have warned that the terms "proposed or pending" should not be so broadly construed as to authorize a closed session when the possibility of litigation is remote. OAG 82-240; OAG 91-141. Applying these general principles to a series of appeals arising under KRS 61.846(2), the Attorney General has held that the Highland Heights City Council properly conducted a closed session to discuss strategy, tactics, and the possible settlement of condemnation proceeding against the city (92-OMD-1728); that the 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 the similarly situated Policemen's Pension Fund (93-OMD-119); that the Lexington-Fayette Urban County Government improperly conducted a closed session to discuss a dispute between the city and state concerning property known as the "Ben Snyder Block" (95-OMD-57); and that Kentucky Employers' Mutual Insurance Authority properly conducted a closed session to discuss whether to appeal an open records decision of the Attorney General, but improperly made the final determination to appeal the decision in the closed session (97-OMD-96).
Based on these decisions, the following guidelines have been established:
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.
93-OMD-119, pp. 3,4; see also, 99-OMD-6 (Bowling Green-Warren County Regional Airport Board properly relied on KRS 61.810(1)(c) to conduct a closed session discussion of threatened litigation by airport tenants to challenge Board's refueling policy, and litigation the Board was likely to initiate against its insurer over disputed storm damage); compare 98-OMD-105 (Bourbon County Fiscal Court failed to make sufficient showing that it properly conducted closed session to discuss pending litigation) ; 01-OMD-130 (Meade County Fiscal Court improperly relied on KRS 61.810(1)(c) as the basis for closed session discussion of case in which it was neither a party plaintiff nor a party defendant); 01-OMD-152 (Martin County Fiscal Court's closed session discussion on the subject of retaining legal counsel was not authorized by KRS 61.810(1)(c)); 03-OMD-178 (Spencer County Board of Education's closed session discussion of hearing procedures in conjunction with KRS 161.765 hearing was improper).
Although the Windy Hills City Council had not yet become a party plaintiff or defendant in a lawsuit, it is apparent that the storm of controversy surrounding the sidewalk issue made litigation more than a remote possibility. This, coupled with the suggestive language of Ms. Renau's March 19 email, created a reasonable apprehension in the minds of the Council members that litigation was threatened. Ms. Renau herself has acknowledged that "litigation may result" from the City's proposal to install sidewalks. While the Council mistakenly ascribed an intent to initiate litigation against it to Ms. Renau, based on her email and "the totality of the circumstances," we do not agree that its position was unfounded when the Mayor called the special meeting to discuss threatened litigation, or that Mr. Renau's assurances to the contrary were sufficient to eliminate all doubt as to the likelihood of litigation. We affirm the Council's actions relative to its invocation of KRS 61.810(1)(c) as the basis for the closed session conducted at April 17 special meeting.
Whether all matters discussed in the closed session qualify as "matters commonly inherent to litigation, such as preparation, strategy, or tactics, " Floyd County Board of Education at 923, is a closer question. As narrowly construed by the Kentucky Supreme Court in Floyd County Board of Education v. Ratliff, above at 924, "matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of everything tangential to the topic." The minutes reflect that the April 17 special meeting convened at 10:00 a.m., that the Council immediately retired to executive session "as per KRS 61.810(2)(c) [sic] . . . to discuss legislation 1 pertaining to the proposed sidewalks on Rudy Lane . . . .," that the Council returned to an open session some two hours later at 12:05 p.m., and that the meeting adjourned at 12:20 p.m. The minutes further reflect that in this fifteen minute open meeting "much discussion" occurred, and Councilman Skelton proposed the following entry in the minutes:
As a result of threatened litigation and numerous misrepre-sentations that have been made by certain parties opposed to the Rudy Lane sidewalk project, the Council proposed that the City contact the 44 affected Rudy Lane sidewalk residents via both regular and registered mail. This mailing will hopefully answer and put to rest any questions and concerns that these residents might have by presenting, in one document, the City's policies and intent as regards this project.
The letter will address these following:
1. The City's policy regarding tree removal and replacement and its intent to hire a third party arborist to evaluate potential future tree damage.
2. Drainage issues.
3. Sidewalk maintenance/repairs issues.
4. Liability issues.
5. Bush and shrub replacement.
6. Incidental damage caused by construction.
7. Individual meetings with QK4 representative.
8. The letter will include a plat of the homeowner's lot showing sidewalk placement.
It seems highly unlikely that nearly two hours were devoted to a closed session discussion of strategy and tactics aimed at heading off threatened litigation, and consisting of a decision to issue a mailing to affected residents, and only fifteen minutes to an open session discussion of the tangential issues concerning what that mailing should contain. If, in fact, these eight issues were the subject of closed session discussion, we cannot agree that that portion of the discussion was proper under KRS 61.810(1)(c). Insofar as these topics constitute "issue(s) about which the [Council] has the option to take action," Yeoman at 474, they must be characterized as public business subject to the mandate of open public discussion set forth at KRS 61.810(1) for which no statutory protection exists. To the extent that the Council discussed topics tangential to the matter of heading off threatened litigation in closed session, those discussions were not authorized by KRS 61.810(1)(c).
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.
Lynn S. Renau726 Waterford RoadLouisville, KY 40207
Louis A. Phillips, MayorCity of Windy Hills5614 Coach Gate WyndeWindy Hills, KY 40207 Foster L. HaunzHaunz & LuckeOne Riverfront Plaza, Suite 2016401 West Main StreetLouisville, KY 40202-4234
Footnotes
Footnotes
1 We assume that the term "legislation" was mistakenly substituted for "litigation."