Request By:
W. John Bourne
Tommy Atteberry, Jr.
Charles Williams
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the City of Bonnieville violated the Open Meetings Act in failing to respond to the written complaint of W. John Bourne and whether the Fiscal Court violated the requirements of KRS 61.815(1) when it went into closed session at its December 2007 and January 2008 regular meetings.
By letter dated January 29, 2008, Mr. Bourne submitted a written complaint to City of Bonnieville Mayor Tommy Atteberry alleging violations of the Open Meetings Act had occurred at the City Council's December 2007 and January 2008 regular meetings. In his letter, Mr. Bourne alleged:
The council went into closed session on both occasions only stating "possible litigation and personnel. "
The council may not go into closed session with out giving notice 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. "
I am requesting that the council discuss at the next regular meeting, in an open public session, those matters that were discussed at the improperly called closed sessions on December 3, 2007 and January 7, 2008. Any action taken as a result of the improperly called session should be declared null and void.
To remedy this situation, please read and abide by the KRS 61.815 statute for all your future Meetings.
In his letter of appeal, dated February 11, 2008, Mr. Bourne advised that he had received no response from the City to his written complaint.
For the reasons that follow, we conclude that City violated the Open Meetings Act by not responding to Mr. Bourne's complaint, as required by KRS 61.846(1). That statute provides, in part, as follows:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.
In construing the operation of KRS 61.846(1) , this office in 03-OMD-116, at p. 2, explained:
The statute does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period.
The facts before us in this appeal indicate that the City did not respond at all to Mr. Bourne's written complaint. 1 Accordingly, we find that the failure of the City to respond to the complaint in writing within the three-day period constituted a violation of KRS 61.846(1) and the Open Meetings Act.
We next address Mr. Bourne's complaint that the City violated the requirements of KRS 61.815(1) when it went into closed session at its December 2007 and January 2008 regular meetings. Mr. Bourne alleges that the City announced that it was going into closed session to discuss "possible litigation and personnel. " The City failed to respond to this complaint. Thus, it has failed to meet its burden of establishing that it complied with the requirements of KRS 61.815(1) when it went into closed session. Addressing the requirements a public agency must meet in going into the closed session, this office in 07-ORD-128, at p. 7, stated:
Our analysis necessarily begins with a review of the fundamental proposition codified at KRS 61.800:
Recognizing that extraordinary circumstances occur which might justify a public agency 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)-(n). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a)-(d), pursuant to which:
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, 955 S.W.2d 921, 923 (Ky. 1997), citing E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 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., 554 S.W.2d 72 (Ky. 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 2 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. 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 [fourteen] 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).
Based upon the evidence of record, this office must conclude that the Board violated the Open Meetings Act in failing to establish that it had strictly observed the requirements of KRS 61.815(1)(a), prior to conducting the closed sessions at issue.
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 On February 27, 2008, this office received a request from the City for an extension of time until after its next meeting on March 3, 2008, to respond to Mr. Bourne's Open Meetings Appeal. KRS 61.846(2) requires that the Attorney General issue his written decision within ten (10) business days of receipt of the complainant's appeal. The statute does not allow this office to extend this statutory ten (10) business day deadline. 40 KAR 1:030, Section 2, allows the Atorney General to consider any response received before the decision is prepared, but provides that the Attorney General shall not agree to withhold action on the complaint beyond the time limit imposed by KRS 61.846(2). Thus, we would be unable to grant an extension to March 3, 2008, for the City to submit a response to the complaint.
2 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.'" See also 03-OMD-221.