Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Joint Board of Ethics of the Cities of Bardstown, Fairfield and the County of Nelson, Kentucky violated the Kentucky Open Meetings Act in failing to comply with notice requirements codified at KRS 61.815(1), and 61.815(1)(a) in particular, before going into closed session at its October 7, 2009, meeting, and further violated the Act in failing to issue a written response within three business days of receiving Kevin Brumley's written complaint on November 16, 2009. Mr. Brumley initiated this appeal by letter dated November 23, 2009, relying primarily on a CD recording of the meeting in dispute, which confirms that a specific exception was not cited to justify going into closed session. In accordance with 09-OMD-169 and 09-OMD-182, recent decisions by this office which involved the same parties and nearly verbatim agency responses, and thus present identical questions of law, this office answers both of the questions presented in the affirmative.
Upon receiving notification of Mr. Brumley's appeal, City Attorney Thomas A. Donan advised that after the Board received 09-OMD-169, issued on October 13, 2009 (holding that the Board violated the Act in failing to strictly comply with the requirements of KRS 61.815(1), and 61.815(1)(a) in particular, before going into closed session at its April 24, 2009, meeting, and violated KRS 61.846(1) in failing to issue a timely written response to Mr. Brumley's complaint), the "Ethics Commission [the Board] held another meeting and properly complied with the Statute to go into closed session. " Attached to Mr. Donan's response is a copy of Board Chairperson Christina Bradford's belated response to Mr. Brumley's complaint, which is dated November 25, 2009. Ms. Bradford advised that the Board meeting, "which was held prior to receiving the Attorney General's decision in 09-OMD-169, the Joint Ethics Board did actually cite generally to the [O]pen [M]eetings [Act] and Fiscal Court Ordinance in question." According to Ms. Bradford, it was "the Board's good faith belief that at that time, this satisfied both substantively and procedurally the requirements of the law." Based upon 09-OMD-169, "which was received by the Board on October 14, 2009, the Board now understands that procedurally it was in error and has corrected this problem." 1
Given that both parties are now familiar with relevant provisions of the Open Meetings Act, and KRS 61.815(1) in particular, this office, as in 09-OMD-182, sees no reason to unnecessarily lengthen this decision with an exhaustive analysis of existing law relative to KRS 61.815. 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:
As in both 09-OMD-169 and 09-OMD-182 (adopts the former decision and involves the same parties), resolution of this appeal turns on the application of KRS 61.815(1)(a). 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). Of particular significance, the Supreme 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). Accordingly, the Attorney General has consistently recognized that "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; 01-OMD-181.
As the Board has acknowledged, the analysis contained in 09-OMD-169, a recent decision involving the same parties and question of law, is controlling on the facts presented which, in relevant part, mirror those which resulted in 09-OMD-169. In particular, the following excerpt is dispositive:
The minutes [CD recording] of the Board's April 24 [October 7] meeting reflect[s] that [Ms. Bradford moved to go into closed session to discuss a potential ethics violation pursuant to the "Open Meetings Law" and the ordinance. ] The [CD does] 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 ["potential ethics violation" arguably suffices here], 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 [the Open Meetings Act generally] 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.
Id., p. 4. Because the instant appeal presents no basis to depart from the reasoning found in 09-OMD-169, this office reaches the same result. Insofar as KRS 61.815(1)(a) contemplates "more than agency recitation of the language of the exception," it stands to reason that a notification without any reference to the exception is deficient. 00-OMD-64, p. 6. The Board has conceded as much; further analysis is therefore unwarranted. A copy of 09-OMD-169 is attached hereto and incorporated by reference. 2
In light of this determination, the remaining question is whether the Board also violated KRS 61.846(1) which, in relevant part, provides:
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.
(Emphasis added.) In construing the operation of KRS 61.846(1), this office has repeatedly 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.
03-OMD-116, p. 2. As evidenced by the record, Mr. Brumley hand delivered his complaint on November 16, 2009; however, the Board failed to provide any response until November 25, 2009, seven business days later. On appeal, the Board offered no explanation for the failure to respond in a timely fashion.
As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings Act, "[t]he language of the statute directing agency action is exact." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-OMD-029, p. 4. Simply put, KRS 61.846(1), as interpreted by the courts and prior decisions of this office, requires a public agency to issue a written response within three business days of receiving a complaint, and failure to comply with KRS 61.846(1) constitutes a violation of the Open Meetings Act. Id. 00-OMD-142; 97-OMD-43; 96-OMD-261. However, this office reminds the parties that KRS 61.846(2) narrowly defines the role of the Attorney General in adjudicating a dispute arising under the Open Meetings Act to issuing a decision indicating whether the public agency violated provisions of the Act. 04-OMD-029, p. 4; 98-OMD-74; 97-OMD-90. In other words, the Attorney General is not statutorily authorized to declare void actions taken at a meeting that was improperly held or impose penalties for violations of the Act. 00-OMD-109; 97-OMD-90.
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.
Kevin BrumleyChristina BradfordThomas A. Donan
Footnotes
Footnotes
1 Although Mr. Brumley subsequently disputed this assertion, based upon a CD recording of the October 17 meeting at which the Board purportedly complied with KRS 61.815(1), a copy of which he provided in reply to Mr. Donan's letter, and which verifies his position that no specific exception was cited as the basis for the closed session, he challenged only the actions of the Board at its October 7 meeting in the complaint which culminated in this appeal; consequently, issues relating to the October 17 meeting are not ripe for review and further discussion is unwarranted. Our scope of review under KRS 61.846(2) is confined to a determination of whether the Board violated the provisions of KRS 61.805 to 61.850.
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2 Although the Board apparently cited " KRS 61.810(1)(k) and (l)" in addition to identifying a "potential ethics violation" as the reason for the closed session listed on the agenda for the meeting in dispute, a picture of which Mr. Brumley submitted with his letter of appeal, compliance with KRS 61.823, wherein the notice requirements for special meetings are found, is not at issue nor is the propriety of the closed session. However, in the interest of efficiency, this office notes that neither exception would seem to apply on the facts presented since KRS 61.810(1)(k) excludes "[m]eetings which federal or state law specifically require to be conducted in privacy[,]" and 61.810(1)(l) excludes "[m]eetings which the Constitution provides shall be held in secret." To the extent the Board invoked KRS 61.810(1)(k) based on the implicit assumption that KRS Chapter 11A (Executive Branch Code of Ethics, which governs state officers and employees), and/or the local ordinance which, in relevant part, mirrors it, governs the proceedings of the Board, the Attorney General rejected that position shortly after the October 7 meeting in 09-ORD-170, the decision of this office in a separate Open Records appeal involving the same parties, issued on October 13, 2009, and thus 61.810(1)(k) would not apply.
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