Request By:
Maralyn Burstein
Tom Bozarth
Phil Moloney
Opinion
Opinion By: Jack Conway, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Midway City Council violated the Open Meetings Act by failing to observe the requirements for going into closed session at its February 18 and March 3, 2008, regular meetings, by conducting an unauthorized closed session at its February 18 meeting, by failing to properly identify the closed session topics in the meeting agenda, and by failing to respond, in writing and within three business days, to the original complaint alleging these violations. For the reasons that follow, we find that the record on appeal substantiates only the first and last of these alleged violations.
In a written complaint dated September 23, 2008, and directed to Mayor Tom Bozarth, Maralyn Burstein alleged that the Midway City Council engaged in various forms of misconduct. Only the allegations set forth above are justiciable in the context of an open meetings appeal, and we confine our analysis to these allegations.
In correspondence directed to this office following commencement of this appeal, 1 Midway City Attorney Phillip M. Moloney denied each of Ms. Burstein's allegations including those which he identified as not arising under the Open Meetings Act and those which he extrapolated from her inartfully drafted complaint. 2 In response to Ms. Burstein's allegation that the Council failed to observe the requirements for conducting a closed session at its February 18, and March 3, 2008, regular meetings, Mr. Moloney asserted:
The minutes of the March 3, 2008, meeting indicate that a motion was made to go into executive session pursuant to KRS 61.810. The tape of the March 3, 2008, Midway City Council Meeting indicates that a "motion was made to go into executive session per KRS 61.810, buy and selling property."
He defended the February 18 closed session in the same terms. Noting that no final action was taken in either closed session, Mr. Moloney maintained that any "deficiency in the announcement of the closed session [s] . . . was technical and unintentional," and agreed to "ensure that motions made to go into executive session are more sufficiently detailed."
Mr. Moloney denied any deficiency in the meeting agenda based on the failure "to state the specific reason for going into closed session in the . . . agenda, " arguing that neither KRS 61.820 nor KRS 61.823 require such a statement. Finally, Mr. Moloney disputed Ms. Burstein's contention that the Council conducted an unauthorized closed session discussion of a zone change under the guise of KRS 61.810(1)(b) at its February 18 meeting. He explained:
[T]he Council did make a motion following the closed session to take steps to rezone the property from agricultural to industrial. However, no final action was taken in the executive session. Further . . . the City owns the property in question, [and] it was not legally required to go through the zone change process since it can vote to change the zoning on its own property without consideration or vote by the planning commission.
For these reasons, Mr. Moloney rejected the proposed remedial measure.
We concur with the Council in the position it takes relative to the nonexistence of a requirement that the city include a specific reference to a closed session, including the statutory authority for the closed session, in a regular meeting agenda. We refer to the parties to 01-OMD-181, and, in particular, the discussion beginning on page 4, declaring that because "KRS 61.820 does not require agencies to prepare an agenda for a regular meeting, " agencies that elect to create one are "not bound to observe the standards of fair notice to the public of particular topics to be discussed or acted upon . . . ." 01-OMD-181, p. 5. A copy of 01-OMD-181 is attached hereto and incorporated by reference. The challenged agendas did not violate the provisions of the Open Meetings Act.
Nor do we find sufficient evidence in the record on appeal to support Ms. Burstein's claim that the Council conducted an unauthorized closed session discussion of a zoning change under the guise of KRS 61.810(1)(b). Ms. Burstein inferred from actions taken by the Council after the closed session that the matters discussed during the closed session must have included zoning matters. The Council flatly denies that any such discussion took place. In 08-OMD-113, this office was confronted with a similar factual dispute relative to the substance of a closed session discussion and was unable to find "[]sufficient proof in the record on appeal to support any such claim." As in 08-OMD-113, a copy of which is attached, the factual dispute in this appeal precludes resolution of this issue in either party's favor.
Both 08-OMD-113 and 01-OMD-181 address the remaining issues presented in this appeal and dictate that those issues be resolved against the Council. With reference to the failure to observe the statutory requirements for conducting a closed session, we refer the parties to the discussion at pages 9 through 13 of 01-OMD-181 and pages 5 through 7 of 08-OMD-113. We quoted from the Kentucky Supreme Court's opinion in
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997):
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.
This includes a description of "the general nature of the business to be discussed" and "the reason for the closed session. " KRS 61.815(1)(a). Neither the minutes of the February 18 and March 3 meetings nor the tapes of those meetings, as described by the Council, reflect strict compliance with these statutory requirements. We therefore find that the Midway City Council violated KRS 61.815(1) in failing to observe the requirements for conducting a closed session.
So, too, the Council violated KRS 61.846(1) in failing to respond in writing, and within three business days, to Ms. Burstein's written open meetings complaint. In 01-OMD-181, this office analyzed the agency's obligations in responding to an open meetings appeal, observing that the "procedural requirements of the Open Meetings Act are not mere formalities but are instead essential to the prompt and orderly processing of an open meetings complaint." Id. at 8. KRS 61.846(1) provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint, and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The Commission failed to issue a written response, and in so doing committed a procedural violation of the Open Meetings Act. We urge the Commission to review KRS 61.846(1) to insure future compliance with the Open Meetings Act.
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 Through an error on our part, Ms. Burstein's original appeal was treated as an unperfected appeal pursuant to 40 KAR 1:030 Section 1 and returned to her. Ms. Burstein promptly notified this office of its error and resubmitted her appeal.
2 Despite our best efforts, we are unable to discern any allegation concerning overcrowding or the inability of attendees to hear or see the proceedings. Mr. Moloney correctly analyzes the issue of participation through public comment, and properly concludes that the Open Meetings Act does not require a public agency to set forth a procedure for public comment.