Request By:
Kevin Brumley
Christina Bradford
Thomas A. Donan
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Joint Board of Ethics for the Cities of Bardstown, Fairfield and County of Nelson violated the Open Meetings Act in failing to observe the requirements for conducting an executive session during its April 24, 2009, meeting and in failing to respond to the complaint alleging this violation. For the reasons that follow, we find that the allegations in the complaint are substantiated and that the Board violated both KRS 61.815(1) and KRS 61.846(1).
On September 21, 2009, Kevin Brumley submitted a complaint to Board Chairperson Christina Bradford. In it he alleged that although the Chairperson stated the executive session was authorized "pursuant to KRS 61.810," the Board "failed to abide by the requirement of KRS 61.815(A) [sic] Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session. " Further, Mr. Brumley alleged that "[p]rior to going into closed session under KRS 61.810(1), the Chairperson has to state the reason 'for the closed meeting, ' and has to cite with specificity one of the 13 exceptions to open meetings, KRS 61.810(1)(a)-(m) authorizing the closed session. " It was his position that because the Board failed to comply with these requirements, it "could not legally discuss anything" in closed session. As a means of remedying these violations, Mr. Brumley proposed that the Board "make a public announcement and apology about this illegal closed meeting, " and that it discuss in open session those matters "illegally discussed at the improperly closed session" at its next scheduled meeting. Having received no response to his complaint, Mr. Brumley initiated this appeal.
In correspondence directed to this office following commencement of Mr. Brumley's appeal, Ms. Bradford advised that "in good faith [his complaint] was picked up within 10 business days as per the Joint Ethics Board rules established on 6/17/09." She acknowledged that she now understood "that a response was due by 9/24/09 . . . ." Ms. Bradford provided this office with a copy of the Board's October 1, 2009, response to Mr. Brumley's complaint, attaching a copy of the agenda from the Board's April 24 meeting. She emphasized that the properly posted agenda "specifically notes that the Board was planning to meet in closed session to discuss a potential ethics complaint."
While it appears that the Board fully complied with KRS 61.823, assuming it was required to do so because its April 24 meeting was a special meeting, Mr. Brumley's allegations focus not on compliance with the notice requirements for a special meeting per KRS 61.823 but on compliance with the requirements for conducting an executive session per KRS 61.815. The record on appeal substantiates these violations.
In 01-OMD-181, a copy of which is attached hereto and incorporated by reference, the Attorney General undertook an extensive analysis of, inter alia , agency compliance with KRS 61.815(1). That statute provides:
(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:
At page 12 of 01-OMD-181, we liberally 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. 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.
Relying on this language, we 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.
01-OMD-181, p. 12, citing 00-OMD-61, p. 6; accord 08-OMD-180; compare 01-OMD-41.
The minutes of the Board's April 24 meeting reflect that "Chair Bradford announced that the Board needed to go into a closed session pursuant to KRS 61.810," and that "[u]pon motion of Board Member Bradford, duly seconded by Board Member Alexander and carried by a vote of 5 to 0, the members went into closed session at 1:04 p.m." The minutes do not reflect strict compliance with the requirements of KRS 61.815(1)(a). There is no indication that notice was given in the open meeting of the general nature of the business to be discussed, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. The Board's announcement was deficient insofar as it only referenced KRS 61.810 and did not identify the exception authorizing, the reason for, and general nature of the business to be discussed in, its closed session. To the extent that the Board failed to strictly comply with the requirements codified at KRS 61.815(1), we find that it violated the Open Meetings Act.
Additionally, we find that the Board violated KRS 61.846(1) by failing to respond to Mr. Brumley's complaint in a timely fashion. That statute provides:
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 . . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Although the Board's ethics ordinance affords Board members a ten day period within which to pick up materials mailed to the agency's address, this ordinance does not supercede the express requirements of the Kentucky Open Meetings Act or the Open Records Act. Pursuant to KRS 61.846(1) and KRS 61.880(1), public agencies are permitted only three business days from the date of receipt to respond to a complaint of an open meetings violation or a request for public records. Receipt under these circumstances is equivalent to delivery at the agency's address and not retrieval by a Board member. Any other determination would clearly lend itself to abuse. Because the Board cannot, by ordinance or any other device, countermand the requirements of the Open Meetings Act, including the requirements of a written response within three business days, we find that its failure to respond to Mr. Brumley's complaint constituted a separate violation of the Act. Accord, OAG 82-435; OAG 82-518; 92-ORD-1136; 01-ORD-63.
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.