Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Kentucky Board of Medical Licensure violated the Open Meetings Act when Inquiry Panel B of the Board went into closed session at its January 13, 2005 meeting to consider a grievance against Governor Ernie Fletcher. For the reasons that follow, we find that KRS 61.815(1) applies to the Board; that the Board violated KRS 61.815(1)(a), requiring notice "in the regular open meeting 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, " at the January 13 meeting; and that the Board, as authorized by KRS 61.815(1)(j), did not violate the Open Meetings Act in going into closed session to deliberate the grievance against Governor Fletcher. However, we find insufficient evidence in the record on appeal to support the claimed violation that the Board members conducted discussions of unauthorized topics in that closed session.
By letter dated January 13, 2005, Jon L. Fleischaker, on behalf of The Courier-Journal, submitted a written complaint to Preston Nunnelley, Chairman, Inquiry Panel B, in which he alleged:
We understand that you are the Chairman of Hearing Panel B of the Kentucky Board of Medical Licensure, and we further understand that the panel met today, January 13, 2005, to consider the grievance filed against Governor Fletcher. We further understand that shortly after the meeting of the panel began, it was announced, without a motion and without a vote, that the panel would meet in executive session to consider what administrative action was to be taken with regard to the grievance. After the short executive session, it was then announced that there would be no public discussion at the meeting and that the grievance would be dismissed. Based upon these facts, we believe the panel violated the Open Meetings Law, KRS [61.]800, et seq. in the following ways:
The procedures set forth in KRS 61.81[5] for holding a closed meeting were not followed. That is, there was no motion or notice given in open session as to the nature of the business to be discussed in the closed session or the provision of KRS 61.810 authorizing disclosure. There was no vote taken to close the meeting. Furthermore, it appears that there was at least some discussion and decision in the closed session not to take comments or questions from the public regarding this matter. Assuming that is the case, that was a decision improperly made during the closed session which may well constitute an additional violation of KRS 61.815(1).
In addition to the procedural violations, we do not believe that it was legally appropriate to discuss this matter in a closed session. KRS 311.591 clearly contemplates that these procedures are administrative in nature and the decision by the hearing panel was nothing more than an administrative decision to deal with the grievance. There were no hearings of any type and no action by the panel which would indicate that it was acting in a quasi-judicial matter.
As a means of remedying the alleged violations, Mr. Fleischaker proposed that a "public acknowledgment by the Board that the closed session was inappropriate under the law;" that a "public commitment by the Board that meetings such as this one in the future will be held publicly;" and "an agreement by the Board that the action taken today by the Panel is void due to the violations of the Open Meetings Act. "
In a letter dated January 19, 2005, Mr. Nunnelley denied the allegations contained in Mr. Fleischaker's complaint, maintaining in relevant part:
The Board maintains that its activities in reviewing Governor Fletcher's case amongst its members and conferring with its attorney as to the merits of the case are such activities exempted from the requirements of KRS 61.815(1).
In the alternative, should one consider the Board's activities not to be exempt, then the Board maintains there was substantial compliance with KRS 61.815. The Panel, through its Panel Chair, announced at the beginning of the meeting to all those present that the Panel would go into closed session to discuss its agenda in order to accommodate the grievant, media and other interested persons. The Panel specifically noted the significant interest those present had in the case related to Governor Fletcher. There was no objection from any person present. The Panel voted to go into closed session. It should be noted that the members of the Inquiry Panel received all information -- the grievance, the physician's response and other investigative information -- relative to the cases on the agenda at least two (2) weeks prior to the meeting.
After returning to open session, the Chairman called for a motion. After the motion was made to dismiss the grievance due to its lack of merit and the fact that Governor Fletcher was acting in his capacity as Governor and not in his capacity as a physician, the Chair inquired if there was any discussion. After discussion, a vote was called and all members voted in favor of the motion to dismiss the grievance. At this time, the grievant, Mr. Carl Wedekind, requested that the Chairman note his objection that he was not allowed to make an oral presentation to the Inquiry Panel. This was the only objection noted by any person present at the meeting.
By letter dated January 25, 2005, Mr. Fleischaker initiated the instant appeal. In his letter of appeal, he argued, in part:
Neither of the Open Meetings Act exceptions invoked by the Panel applies to the determination made in the closed January 13, 2005 meeting. The Panel's meeting is governed by KRS 311.591, which contemplates that such determinations are administrative in nature and are not shielded as proposed litigation or quasi-judicial deliberations. Rather, the decision by the hearing panel was nothing more than an administrative decision to deal with the grievance.
In reference to the Board's reliance on KRS 61.810(1)(c), the "litigation" exception, Mr. Fleischaker asserted, in part:
In the present case, no litigation has been proposed or was pending to which the Panel or the Board was a party or potential party. Rather, the Panel met to decide whether or not there was sufficient evidence of misconduct to warrant the issuance of an administrative "complaint" pursuant to KRS 311.591(3). Administrative complaints themselves are nothing more than the documents initiating an "administrative hearing, " and do not involve litigation. KRS 311.591(5) (also employing term "administrative hearing" throughout); see also Black's Law Dictionary, 7th ed. 1999, p. 244 (defining "[l]itigation" as "[t]he process of carrying on a lawsuit" and "[a] lawsuit itself"). The grievance inquiry contemplated by KRS 311.591(2) and (3) which is at issue in this case, is once removed from the administrative complaint stage and is, at most, conducted in anticipation of a possible administrative hearing -- not in anticipation of litigation in a court of law.
In reference to the Board's reliance on KRS 61.810(1)(j), the "judicial deliberations" exception, Mr. Fleischaker stated that the Panel's grievance inquiry did not qualify for the exception. In his letter of appeal, he argued:
First, the Panel acted in an administrative capacity rather than as a judicial or quasi-judicial body. See, e.g., KRS 311.591(2) ("Each grievance shall be investigated as necessary" by the inquiry panel). In the Panel's words, it was "reviewing Governor Fletcher's case amongst its members and conferring with its attorney as to the merits of the case." (Exhibit B, p. 1.) Accordingly, the Panel was acting as an administrative prosecuting authority rather than as a judicial or quasi-judicial body.
Second, the grievance inquiry is not "regarding individual adjudications or appointments. " KRS 61.810(1)(j). Neither appointments nor adjudications are made as a result of grievance inquiries. Rather the result of grievance inquiries is a prosecutorial decision regarding how to proceed upon a particular grievance. KRS 311.291(3). The "adjudication" of grievances does not occur until after the issuance of a complaint and the administrative hearing provided for by KRS 311.591(5). The line between prosecution and adjudication is specifically contemplated by the statute, which prohibits the same panel to perform both tasks in any given case. KRS 311.591(5).
In addition, Mr. Fleischaker contended that the Panel "also appeared to have engaged in discussion and reached a decision not to take comments or questions from the public regarding this matter." He argued:
Any discussion or decision by the Panel in closed session to refuse questions, comments or inquiries from the public concerning the grievance, was also a violation of the Open Meetings Act. See, KRS 61.810; LRS 61.815(1). Thus, even assuming the Panel's discussion and decision relating to the merits of the grievance was properly closed, the Panel has made no attempt to justify its closure of the portion of the meeting concerning public and press relations. KRS 61.815(1)(d) ; see, e.g., Floyd County Bd. of Educ. V. Ratliff, Ky., 955 S.W.2d 921, 924 (1997).
After receipt of notification of the appeal and a copy of the letter of appeal, C. Lloyd Vest II, General Counsel for the Board, provided this office with a response to the issues raised in the appeal. In his response, Mr. Vest explained that under KRS 311.591, the membership of the Board is divided into two panels, of 7 members each, to serve as the Inquiry Panel in conducting investigations and making charging decisions and to serve as Hearing Panel in resolving pending Complaints. The two panels are designated Panel A and Panel B and meet at least 4 times a year. At each scheduled meeting, a panel acts in both capacities as a Hearing Panel to finally resolve pending Complaints and to act on requests for modification or termination of existing orders; and, as Inquiry Panel in deciding whether further investigation is required in investigations involving grievances or noncompliance reports and in deciding whether to initiate litigation in those cases through the initiation of a Complaint.
Addressing the procedures and operation of an Inquiry Panel, the panel whose actions are under consideration in the instant appeal, Mr. Vest further explained, in relevant part:
. . . Once the Panel has completed its discussions with counsel and its deliberations, it returns to open sessions for any motion and vote to take action. If the Panel takes no action, the minutes and the written materials considered are subject to inspection and disclosure under the Open Records Act. If the Panel votes to initiate litigation, relevant information will be included in the Complaint as required by KRS 311.591(3)(d). Other information will be disclosed according to discovery according to discovery orders and through the evidentiary proceedings, under KRS Chapter 13B.
We first address the Board's argument that pursuant to the operation of KRS 61.815(2), it is exempt from the requirements of KRS 61.815(1).
KRS 61.815(1) and (2) provide as follows:
(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(2) Public agencies and activities of public agencies identified in paragraphs (a), (c), (d), (e), (f), but only so far as (f) relates to students, (g), (h), (i), (j), (k), and (l) of subsection (1) of KRS 61.810 shall be excluded from the requirements of subsection (1) of this section.
In 03-ORD-178, this office dealt with the meaning of KRS 61.815(2) and its effect on the practical operation of KRS 61.815(1). In that decision, citing prior decisions of this office, we again held that we believe that the legislative intent on KRS 61.815(2) is that agencies, per se, which are exempt from complying with the Open Meetings Law, such as the Parole Board, juries, the Governor's cabinet, committees of the General Assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in KRS 61.815, and that agencies which are not exempt per se but which go in closed session to deal with an excepted subject matter must observe those formalities.
Simply put, the Kentucky Board of Medical Licensure is not exempt, per se, from complying with the Open Meetings Act, and we therefore conclude that it is required to comply with the requirements for conducting a closed session codified at KRS 61.815(1). 03-OMD-178.
We next address Mr. Fleischaker's assertion that the Board did not comply with KRS 61.815(1)(a) when it went into closed session at the January 14, 2003 meeting.
In construing KRS 61.815(1)(a), the Attorney General has observed:
[T]he Open Meetings Act, and in particular KRS 61.815(1)(a) , 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 (1997). 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 (emphasis added). 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.
In its response to Mr. Fleischaker's assertion that it did not comply with KRS 61.815, the Board maintained there was substantial compliance with KRS 61.815. In discussing the necessity of strict compliance with the requirement of stating the specific exception relied upon, this office in 04-OMD-179, p.8, stated:
. . . citation to the specific exception authorizing the closed session is not simply "the best practice," or that the failure to do so is a mere "technical" violation, 1 but that it is instead a statutory requirement along with the requirement that the agency describe the general nature of the business to be discussed.
There is nothing in the record before us to indicate that the Board announced in open session the specific exception(s) upon which it was relying that authorized going into the closed session. Accordingly, we find this omission constituted a violation of the Open Meetings Act. 04-OMD-179. Belatedly citing the exceptions in its response to the complaint does not meet the requirements of KRS 61.815(1)(a). See 01-OMD-227.
We next address whether the Board properly went into closed session to consider the grievance against Governor Fletcher under one the cited exceptions relied upon in its response to Mr. Fleischaker's complaint. We note at the beginning that an inquiry by the Board of Medical Licensure charged with the responsibility "to regulate, control and otherwise discipline the licensees who practice medicine and osteopathy within the Commonwealth of Kentucky" is undeniably public business, and subject to the requirements of the Open Meetings Act. KRS 311.555. For the reasons that follow, we conclude KRS 61.810(1)(j) permits the Board to go into closed session to consider and deliberate a grievance against a physician. Such a closed session must conform in all particulars with the requirements of KRS 61.815(1)(a) through (d), including the requirement that no final action may be taken during the closed session.
KRS 61.810(1)(j), in relevant part, authorizes a public agency to go into closed session for:
Deliberations of judicial or quasi-judicial bodies regarding individual adjudication or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present . . . .
In support of the Board's position that KRS 61.810(1)(j) authorized the Inquiry Panel to go into closed session to consider and deliberate the grievance against Governor Fletcher, Mr. Vest argued, in part:
As an initial matter, it is important to recognize that, in exercising its options under KRS 311.591(3), the Panel is making a "charging" decision, a decision whether there is sufficient evidence to charge the physician with violating specific provisions of KRS 311.595. To that extent, the Inquiry Panel is carrying out the same basic function as a grand jury in criminal cases, determining whether to file charges . . . It is noteworthy that KRS 61.810(d) exempts "grand and petit jury sessions" for the Open Meetings requirements. The rationale underlying that exception and the exception under KRS 61.810(1)(j) is the same -- each charging body should be permitted to deliberate fully and candidly in closed session.
Mr. Vest also explained that the Board's investigative records would be exempt from disclosure while the matter was pending under KRS 61.878(1)(h) 2, and dovetails with the deliberative process, and the reasons for going into closed session, stating:
Requiring the Panel's deliberation and discussions prior to a vote to take action on an investigation to be public would harm the Board's action by its premature release. An obvious example would be the situation where the Panel discusses tactical considerations and prospective investigative avenues to explore in completing the investigation. It would certainly harm the Board's ability by permitting the physician who is the subject of the investigation to sit in and observe those discussions. The same harm would occur by permitting news organizations to attend and possibly report the next investigative steps to be taken by the Board. Requiring the Panel to conduct its deliberations in open session, with public access to the preliminary investigative records, would negate the investigative exemption from the Open Records Act.
In addressing the application of KRS 61.810(1)(j) to the Board deliberations, Mr. Vest further argued:
It is also important to recall that the scheduled meeting of the Inquiry Panel is the first opportunity for its members to confer with Board counsel about all the issues, outlined generally above, as they relate to the appropriateness of issuing a Complaint to proceed to adjudication against a licensed physician. Accordingly, the closed session of the Inquiry Panel's meeting relating to the investigation is the Panel's first opportunity to deliberate -- to weigh and examine the reasons for and against issuing the Complaint -- after conferring with counsel. The attorney-client privilege, the pending investigation privilege, the litigation exemption, and the exemptions for deliberations are all intertwined to authorize the Panel's closed discussions with its attorney(s) and deliberations following that discussion, pursuant to the statute.
The Board, when it considers and deliberates on a grievance against a physician, acts in a quasi-judicial capacity. As explained in the Board's response to this office, the capacity of the Inquiry Panel is to review the investigation and other materials relating to a grievance and decide whether the investigation is complete or further investigation is required. If the Panel finds the investigation is complete, it then must exercise its options under KRS 311.591(3) and determine whether sufficient evidence is present to charge a physician with violation of KRS 311.595 or to issue a dismissal of the action, issue a Letter of Concern or admonish the physician for his misconduct.
In the context of KRS 311.591(3), the Inquiry Panel is deliberating whether to file charges which will result in an adjudication against the individual physician. The action by the Inquiry Panel is an "individual adjudication" on the status of a grievance against a physician, acting in a quasi-judicial capacity. KRS 61.810(1)(j). Accordingly, we conclude that the Inquiry Panel could properly go into closed session under that exception to discuss and deliberate the merits of the grievance. Once the Panel has completed its discussions with counsel and its deliberations, it returns to open session for any motion and vote to take action. As the response of the Board to Mr. Fleischaker's complaint advised, after the Panel returned to open session, the Chairman called for a motion and a motion was made to dismiss the grievance against Governor Fletcher due to its lack of merit and the fact that Governor Fletcher was acting in his capacity as Governor and not in the capacity as a physician. The Chairman inquired if there was any discussion and, after discussion, called for a vote and all members voted in favor of dismissing the complaint.
Accord, 01-OMD-18, in we which found that the Richmond Board of Ethics was acting in a quasi-judicial capacity in reviewing allegations of unethical conduct against the Mayor of the City of Richmond and in that capacity, under authority of KRS 61.810(1)(f), could go into closed session for the purpose of conducting a "preliminary inquiry" as to whether the allegations stated a minimal factual basis to constitute a violation, and a complaint should issue, as such discussions might lead to the imposition of discipline on the Mayor.
Because we decide that the Inquiry Panel could properly go into closed session under KRS 61, 810(1)(j), we need not address whether it could do so under KRS 61.810(1)(c).
Finally we address the question of whether the Board discussed topics in closed session that were not authorized by KRS 61.810(1)(j). We find that the record on appeal contains insufficient evidence to support Mr. Fleischaker's allegation. It is his belief that the Panel engaged in discussion and reached a decision in the closed session to not take comments or questions from the public regarding the matter. We cannot conclude, based upon Mr. Fleischaker's bare allegation, that discussion on this topic or on other than those relating to the grievance against Governor Fletcher occurred in closed session. Although the fact that Panel Chair announced at the beginning of the meeting that the Panel would go into closed session to discuss its agenda in order to accommodate the grievant, media and other interested persons suggests that such discussions may have occurred, nothing in the record on appeal substantiates this fact. Accordingly, we make no finding in this regard. If such discussions took place, it would constitute a violation of KRS 61.815(1)(d).
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.
Footnotes
Footnotes
1 In 00-OMD-114, this office declined to treat a violation of the Open Meetings Act as "technical." At page 3 of that decision we reasoned that "[t]he Act itself does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely 'technical.'" Here, too, we decline the invitation to treat the violation as technical.
2 KRS 61.878(1)(h), in relevant part, authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. . .