Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Kenton County Fiscal Court violated the Open Meetings Act in failing to observe the requisite formalities before conducting a closed session during the regular meetings held on September 26, 2006, and November 21, 2006. More specifically, the question is whether the Fiscal Court complied with KRS 61.815(1)(a) on each occasion. In accordance with
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (1997) and a line of decisions issued by the Attorney General, this office concludes that mere citation of the specific provision (s) relied upon by the Fiscal Court and recitation of the language contained therein did not constitute adequate notice of the general nature" of the business to be discussed nor the reason(s) for the closed session as expressly required by KRS 61.815(1)(a); to hold otherwise would contravene the letter and spirit of the Open Meetings Act as well as governing precedent.
By letter dated January 17, 2007, Mike Warth submitted a written complaint to Judge Executive Ralph A. Drees, "against the Fiscal Court's failure to follow the formalities and establish conditions in KRS 61.815(1)(a) which are required of all public agencies before they can take a vote to enter closed session on both dates." More specifically, Mr. Warth alleged the Fiscal Court failed to provide notice of the "general nature of the business to be discussed and the reason before it entered into close[d] session on both dates." Also, the Fiscal Court failed "to indicate if the litigation was 'proposed' or 'pending' on both dates." In Mr. Warth's view, the Fiscal Court "violated the public good and failed to strictly comply with the Open Meeting [s] Act on both dates." As a means of remedying these violations, Mr. Warth proposed:
. . . the Fiscal Court and the presiding officer acknowledge each violation at its next regularly schedule[d] meeting, discuss ways to improve the Fiscal Court's ability to comply with the Open Meetings Act, cease the policy of reciting just the language of the exception, re-read the Attorney General's documentation called "Your Duty Under The Law" and "Outline: The Law of Open Records and Open Meetings."
In closing, Mr. Warth asked the Fiscal Court to "strictly adhere to all requirements of the Open Meetings Act in the future."
On January 24, 2007, Joe Shriver, Human Resource Director and Deputy Chief of Staff, responded to Mr. Warth's complaint (received on January 19, 2007) on behalf of the Judge Executive/Fiscal Court in his capacity as Official Records Custodian of the Fiscal Court. Having reviewed the minutes of both meetings and consulted with Kenton County Attorney Garry Edmondson, Mr. Shriver disagreed with Mr. Warth's characterization of the events on both dates and, therefore, denied his proposed remedy for the alleged violation. In support of his position, Mr. Shriver argued:
On September 26, 2006 the Fiscal Court did in fact cite in the minutes, the specific statutory exceptions to the Open Meetings Act, stated the reason for the executive session and County Attorney Edmondson explained the general nature of the pending litigation. On November 21, 2006, again the Fiscal Court did in fact cite in the minutes the specific statutory exceptions to the Open Meetings Act, stated the reason for the executive session and Deputy Judge/Executive Scott Kimmich read a Resolution into the record regarding the acquisition of property for a piece of land for construction of a county detention center. Pursuant to KRS 61.846(1), the Fiscal Court relies on the very minutes of the meetings in question and KRS 61.810(1)(b) & (c). The application of the aforementioned statute is fairly straightforward in that on September 26, 2006 Deputy Judge Kimmich asked that the [C]ourt be allowed to go into executive session and stated the statutory citations and nature of the discussions. County Attorney Garry Edmondson commented on the litigation in open session. 1 All of which was supported by a motion and a second from the Court to enter into executive session and return to open session. As for November 21, 2006, again Deputy Judge Kimmich asked that the [C]ourt be allowed to go into executive session and stated the statutory citations and nature of the discussions. Deputy Judge Kimmich read a formal resolution into the record pertaining to the acquisition of property again, all of which was supported by a motion and a second from the Court to enter into executive session and return to open session as well as a unanimous vote in open session to approv[e] the aforementioned resolution.
Given Mr. Warth's concern "and the Fiscal Court's desire to continue to strictly adhere to the laws governing Open Meetings," the Fiscal Court agreed to "state with as much specificity as practical and as prescribed by law the specific exception, a description of the general nature of the business and the reason for the executive session so that [the] public can assess the reasons for the Court's actions." 2
Because the Fiscal Court "did not admit to any of the violations and did not implement any of [his] reasonable and proper remedies," Mr. Warth initiated this appeal by letter dated February 2, 2007. In Mr. Warth's opinion, the Fiscal Court failed to observe the formalities "prior to and before going into closed session on September 26, 2006 and November 21, 2006, as required by KRS 61.815"; he maintains "the Fiscal Court violated the public good when it failed to comply with the strict letter of the law." As correctly argued by Mr. Warth, "KRS 61.815 unmistakably requires notification to the public prior to a closed session, not subsequent notification. " However, the minutes and digital recording of both meetings reflect the Fiscal court "gave the particular statute and recited only the statutory exception language," failing to describe the general nature of business and reason for entering into closed session. On both dates, the Fiscal Court "revealed what was discussed" after the closed session, "but this subsequent action does not reflect compliance with the statute." We agree.
Upon receiving notification of Mr. Warth's appeal from this office, Mr. Shriver merely resubmitted his original response minus the concluding paragraph; the arguments contained therein are equally unpersuasive the second time around. When viewed in light of governing precedent, the evidence of record validates Mr. Warth's position entirely. 3
Our analysis necessarily begins with a review of the fundamental proposition codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 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 by law shall be strictly construed.
Recognizing that extraordinary circumstances occur which might justify a public agency in conducting public business during a closed session, the General Assembly created a number of exceptions to this general rule, which are codified at KRS 61.810(1)(a)-(l). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a)-(d), pursuant to which:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
In construing KRS 61.815, Kentucky's highest courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good. "
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing
E.W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990). Consequently, "the courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id. Both the General Assembly and the judiciary have thus demonstrated their commitment to "open government openly arrived at." 00-OMD-113, p. 2 (citation omitted).
As evidenced by the following, decisions issued by the Attorney General over the years relative to compliance with KRS 61.815(1) are consistent with
Floyd County Board of Education v. Ratliff, supra, in which the Kentucky Supreme Court held that the Board failed to give proper notice in open session of the matters to be discussed in a closed session. Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the Court reasoned:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. In this case, the minutes of the Board do not reflect any mention of the "proposed or pending litigation" exception to the Open Meetings Act. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. See Fiscal Court v. Courier Journal and Louisville Times Co., Ky., 554 S.W.2d 72 (1977); Jefferson County Board of Education, supra, at 28. We agree with the language written by then Court of Appeals Judge Johnstone and concurred in by the panel composed of Judges Schroder and Wilhoit that "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny. Unfortunately, we believe that is precisely how they were used in this case."
Discussions between Board members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct.
Floyd County Board of Education at 924 (emphasis added).
Of particular significance here, the Attorney General has observed the following on the issue of strict compliance 4 with KRS 61.815(1)(a):
It is the opinion of this office that the 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.
00-OMD-64, p. 6 (emphasis added). Referring to language employed by the Supreme Court in Floyd County Board of Education, supra, this office concluded:
In view of the disparate nature of the [thirteen] 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.
Id. (Emphasis added). Having reviewed the digital recording of each meeting, this office concludes that minutes from each meeting accurately reflect the events in question; in fact, the minutes represent almost a verbatim account. 5
In relevant part, the minutes of the meetings held on September 26, 2006, and November 21, 2006, respectively, provide as follows:
Executive Session
Deputy Judge Kimmich asked that the court be allowed to go into executive session pursuant to KRS 61.810, Section 1, Subsection B, acquisition of property, and Subsection C, proposed or pending litigation against the county or on behalf of the county.
Commissioner Black made the motion for executive session followed by a second from Commissioner Humpert with a unanimous vote of aye.
The motion was made by Commissioner Black to reconvene in open session; motion seconded by Commissioner Humpert.
Executive Session
Deputy Judge Kimmich said the court would go into executive under KRS 61.810, section one, Paragraph B, the acquisition of property and Paragraph C, proposed or pending litigation.
Commissioner Koenig made the motion to go into executive session; seconded by Commissioner Black and court went into session with the unanimous vote of aye.
Commissioner Black made the motion for the court to go back into regular session with a second from Commissioner Humpert. The court came back into session with the unanimous vote of aye.
Although the Fiscal Court is correct in asserting that Deputy Judge Kimmich cited the specific provision which authorized the session in each instance, merely parroting the language of the provision, as the Fiscal Court did here, does not satisfy the standard of "specific and complete notification" nor does it constitute a "sufficiently specific" description of the business to be discussed; KRS 61.815(1)(a) contemplates more than agency recitation of the statutory language authorizing the closed session, as happened on both occasions at issue, yet less than a description so detailed as to defeat the purpose of having the closed session.
As consistently recognized by this office, "a notification which does not include a statement of the specific exception relied upon to conduct a closed session, a description of the general nature of the business to be discussed in, and the reason(s) for, the closed session is inadequate. " 03-OMD-221, p. 4; 02-OMD-200; 01-OMD-181; 00-OMD-64. On appeal, the Fiscal Court does not offer any evidence which refutes Mr. Warth's assertion that it failed to strictly observe the formalities codified at KRS 61.815(1)(a), relying instead upon the fact Deputy Judge Kimmich cited the specific provision (s) in partial compliance with KRS 61.815(1)(a), 6 and, further, that the Fiscal Court subsequently elaborated regarding the nature of the business discussed and the reason(s) for the sessions during open session to excuse the omissions, thereby misinterpreting KRS 61.815(1)(a). While the record confirms that the Fiscal Court complied with KRS 61.815(b) and (c), insofar as a motion was made and carried by a majority vote (unanimous) in open, public session before the closed session was conducted, and the resolutions were proposed and voted upon following the closed session (which Mr. Warth does not dispute), belated notification is an oxymoron. To the extent the Fiscal court failed to strictly comply with the requirements of KRS 61.815(1) prior to conducting the closed sessions held on September 26, 2006, and November 21, 2006, those omissions were contrary to Floyd County Board of Education, supra, the fundamental policy of the Open Meetings Act codified at KRS 61.800, and prior decisions of this office.
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 proceeding.
Footnotes
Footnotes
1 Under the section entitled "Administrative Reporting" in the minutes of the November meeting, the "COUNTY ATTORNEY'S REPORT" indicates that Mr. Edmondson "said the court was going to have an executive session and he would be reporting on litigation in that meeting." Assuming Mr. Shriver is referring to same, which may be more than adequate for the purpose of such a report, neither the timing nor the content of this cursory reference alters the analysis relative to KRS 61.815(1)(a).
2 Because Mr. Warth's appeal focuses exclusively on the Fiscal Court's failure to comply with KRS 61.815, this office does not address the propriety of its reliance upon the cited exceptions; however, the analyses contained in 04-OMD-127 and 04-OMD-146 are controlling relative to KRS 61.810(1)(b) and KRS 61.810(1)(c), respectively; a copy of each decision is attached hereto and incorporated by reference.
3 Enclosed with Mr. Warth's appeal are the minutes from both meetings and a DVD recording of each meeting which he acquired from the Telecommunications Board of Northern Kentucky; the undersigned has reviewed all of the above.
4 In 00-OMD-114, this office declined to view a violation of the Open Meetings Act as "technical." At page 3 of that decision, the Attorney General 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, this office again declines the invitation to view a procedural violation as technical on the same basis. See also 03-OMD-221.
5 To clarify, Mr. Warth does not allege that the Fiscal Court failed to comply with KRS 61.815(1)(b) and (c) nor would the record support any such claim in short; the Fiscal Court necessarily violated KRS 61.815(d) given that proper notice of the matters discussed was not provided in accordance with KRS 61.815(1)(a). See 06-OMD-150, p. 7.
6 Although the requirement that a public agency give notice of "the specific provision authorizing the closed session" was added in 1992 when the Open Meetings Act was amended, to reiterate, it does not supplant the duty of the agency to give notice in the open, public session of the general nature of the business to be discussed in closed session and the reason for the closed session. See 03-OMD-221. Here, the Fiscal Court failed to give any explanation of how publicity would affect the property acquisition in accordance with KRS 61.810(1)(b); likewise, the Fiscal Court neglected to even specify whether the litigation was proposed or pending in citing KRS 61.810(1)(c).