Request By:
Kevin Brumley
Barbie Bryant
Christina Bradford
Thomas A. Donan
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records 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 Records Act in denying Kevin Brumley's August 25, 2009, request for "ALL the public records as per the definition of what constitutes a public record (KRS 61.870(2)) in [sic] the ethics complaint filed by Madge Brumley against Bardstown city employees Mike Abell and Larry Green." 1 Although the city ordinance upon which the Board relied, in relevant part, mirrors KRS Chapter 11A, that statute is not applicable in this context and the decisions applying it are thus inapposite. Because such records are open for inspection once final action has been taken by the agency, including the decision to take no action, under the Open Records Act, which prevails over conflicting provisions of the city ordinance, the Board violated the Open Records Act in denying Mr. Brumley's request.
In a timely written response, 2 Board Chairperson Christina Bradford advised Mr. Brumley, in relevant part, as follows:
Please be advised that any records relating to a preliminary investigation are confidential and not subject to disclosure in accordance with local [o]rdinances and KRS 61.878(1)(l) and KRS 11A.080(2) and (3). KRS 11A.080(2) provides that: "All Commission proceedings and records relating to a preliminary investigation shall be confidential until a final determination is made by the Commission, except . . ." KRS 11A.080(3) provides that: "If the Commission determines in the preliminary investigation that the facts are not sufficient to constitute a violation of this Chapter, the Commission shall immediately terminate the investigation and notify in writing the Complainant, if any, and the person alleged to have committed a violation." Therefore[,] any alleged investigation of Mr. Abell and Mr. Green's conduct which "did not proceed to an adjudication but was terminated in the preliminary investigative phase" would remain confidential since a "termination" does not constitute a "final determination" within the meaning of KRS Chapter 11A. See [02-ORD-44, p. 4.] Also see 97-ORD-70. These interpretations by the Kentucky Attorney General were reaffirmed in two [decisions] in 2007[,] 07-ORD-201 and 07-ORD-202. Therefore, preliminary investigation records which do not proceed to a formal hearing or other permitted resolution remain confidential and are not subject to disclosure per KRS 11A.080(2) and (3).
By letter dated September 11, 2009, Mr. Brumley initiated this appeal challenging the denial of his request, initially noting that Ms. Bradford failed to cite any of the purportedly relevant local ordinances. Relying upon 99-ORD-219, which recognizes that "KRS 65.003 makes no provision for confidential advisory code of ethics opinions," Mr. Brumley argued that "KRS 65.003 makes no provision for 'confidentiality' in closed investigations." Mr. Brumley further observed that in 97-ORD-22 this office recognized that a city is not permitted to make records confidential or exempt from public inspection by ordinance unless those records fall within one of the exceptions found at KRS 61.878(1) as the General Assembly preempted the field of access to public records by enacting the Open Records Act. In closing, Mr. Brumley emphasized that KRS Chapter 11A, the Executive Branch Code of Ethics, which governs all state officers and employees in the executive branch of state government, is, to summarize, facially inapplicable on these facts.
Upon receiving notification of Mr. Brumley's appeal from this office, Thomas A. Donan, attorney for the Board, responded on his client's behalf. Mr. Donan initially advised that the "City of Bardstown's Ethics Ordinance is found under Chapter 43: Code of Ethics. " More precisely, the Board relied upon subsections (C) and (D) of Section 43.44, entitled "Filing and Investigation of Complaints," pursuant to which:
(C) All proceedings and records relating to a preliminary inquiry being conducted by the Board of Ethics shall be confidential until a final determination is made by the Board except:
(D) The Board shall make a determination based on its preliminary inquiry whether the complaint is within its jurisdiction and, if so, whether it alleges a minimal factual basis to constitute a violation of this chapter. If the Board concludes that the complaint is outside its jurisdiction, frivolous or without factual basis, the Board shall immediately terminate the inquiry, reduce the conclusion to writing, and transmit a copy of its decision to the complainant and to all officers or employees against whom the complaint was filed.
As Mr. Donan correctly observed, the "substance" of subsection (C) is "the same as KRS 11A.080(2)," subsections (a) and (b). Likewise, the "substance" of subsection (D) "is the same as KRS 11A.080(3)." 3
According to Mr. Donan, the Board's denial of Mr. Brumley's request "was based on well established interpretation of the language found in the City of Bardstown's Ordinance [a copy of which is attached to his response], which is also found in the Ordinances of the County of Nelson and City of Fairfield." In response to Mr. Brumley's contention that KRS Chapter 11A does not govern his request, Mr. Donan relied upon the fact "that the language adopted for the Joint Ethics Board ordinance is substantively the same." Again citing 97-ORD-70, 02-ORD-44, 07-ORD-201 and 07-ORD-202 as dispositive, all of which involved the Executive Branch Ethics Commission and KRS Chapter 11A, Mr. Donan reiterated the Board's earlier argument that "preliminary investigation records which do not proceed to a formal hearing or other permitted resolution remain confidential and are not subject to disclosure. " (Original emphasis.) Although those decisions validate that assertion relative to proceedings and records under KRS Chapter 11A, this office must respectfully disagree, based upon the following, that the same can be said in this context. To the contrary, those decisions are inapposite.
When called upon to render a decision involving statutory interpretation, the Attorney General is required "to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In so doing, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). Likewise, this office "must construe all words and phrases according to the common and approved uses of language" per KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker, Ky. App., 661 S.W.2d 447, 480 (1983); See also
Withers v. University of Kentucky, Ky. 939 S.W.2d 340, 345 (1997). When viewed in light of the foregoing principles, as well as the legislative statement of policy codified at KRS 61.871, declaring "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," the relevant statutes and existing authority compel this office to conclude that insofar as the relevant ordinance conflicts with provisions of the Open Records Act, it cannot stand nor may the denial premised on it be affirmed.
The Joint Ethics Board and the relevant Code of Ethics were created in accordance with KRS 65.003. Subsection (3) of that statute provides:
Each code of ethics adopted as provided by subsection (1) or (2) of this section, or amended as provided by subsection (4) of this section, shall include, but not be limited to provisions which set forth:
(a) Standards of conduct for elected and appointed officials and employees;
(b) Requirements for creation of financial disclosure statements, which shall be filed annually by all candidates for the city, county, or consolidated local government elective offices specified in subsection (1) of this section, elected officials of each city, county, or consolidated local government, and other officials or employees of the city or county government, as specified in the code of ethics, and which shall be filed with the person or group responsible for enforcement of the code of ethics, provided that nonpaid members of jointly created agencies may be exempted from filing financial disclosure statements;
(c) A policy on the employment of members of the families of officials or employees of the city, county, or consolidated local government, as specified in the code of ethics;
(d) The designation of a person or group who shall be responsible for enforcement of the code of ethics, including maintenance of financial disclosure statements, all of which shall be available for public inspection, receipt of complaints alleging possible violations of the code of ethics, issuance of opinions in response to inquiries relating to the code of ethics, investigation of possible violations of the code of ethics, and imposition of penalties provided in the code of ethics.
Noticeably absent is any indication that a board is required or authorized to include a provision designed to maintain the confidentiality of records generated in the course of investigating "possible violations of the code of ethics" ; rather, a board is not otherwise authorized to supersede provisions of existing law such as the Open Records Act. "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra. Although the Board maintained that its ordinance was enacted under authority of KRS 65.003, as indicated in Section 43.01, the fact remains that KRS 65.003 offers no specific authority for its position that such records can be properly withheld under the circumstances presented.
In OAG 94-69, this office was asked to clarify "the exact and only duties required of the Department of Local Government by House Bill 238 (Acts, 1994, ch. 16 § 1), now codified as KRS 65.003, which requires the governing body of each city and county, including urban and charter counties, to adopt, not later than January 1, 1995, a code of ethics as specified in the legislation." Having identified the "specific duties" codified at KRS 65.003(5)(a)-(c) and 65.003(6), this office determined that the Department also had a "'general duty' to determine 'compliance' with the basic requirements of KRS 65.003." OAG 94-69, p. 3. This "general duty" to determine compliance with KRS 65.003 as a whole stems from the language of KRS 65.003(6), which, in relevant part, provides that "[i]f a city, county, or consolidated local government fails to comply with the requirements of this section the Department of Local Government [now called the Governor's Office for Local Development] shall notify all state agencies, including area development districts, which deliver services or payments of money from the Commonwealth to the city, county, or consolidated local government. " 4 In our view, "the Department [GOLD] should review ordinances tendered to it to determine if essential requirements of an ordinance are present," which means "reviewing an ordinance in relation to KRS 83A.060" for cities, and "in relation to KRS 67.076, et. seq ." for counties. Id., p. 4. This office also found that the Department [GOLD] must determine "whether an ordinance tendered to it under KRS 65.003 addressed those topics that are required to be addressed" by KRS 65.003(3)(a)-(d), but "should find a failure to comply with KRS 65.003 only where basic elements required by KRS 65.003 are not present."
Here, Mr. Brumley has not alleged that any deficiencies exist in the relevant ordinance aside from Section 43.44 nor are other sections implicated. As previously noted, KRS 65.003 does not contain specific procedural requirements for the filing and investigation of alleged violations of codes of ethics, or mandate confidentiality of records generated; rather, it merely indicates that each person or group responsible for enforcement must include a provision for investigation of possible violations. As OAG 94-69 confirms, GOLD is not statutorily required to determine whether the content of a specific ordinance is consistent with all existing laws, but is only required to ensure that "essential requirements" are met and that each ordinance contains the "basic elements" identified at KRS 65.003(3). GOLD reviews each ordinance to confirm that a procedure exists in the code of ethics for the investigation of possible violations, but does not determine whether that procedure is consistent, for example, with provisions of the Open Records Act. In other words, OAG 94-69 offers no support for the Board's position; GOLD is not required to conduct a review from an Open Records perspective.
Although the instant appeal presents an issue of first impression, this office is not without guidance in resolving the question presented. In 99-ORD-219, the Attorney General was asked to determine whether the Owensboro Metropolitan Planning Commission violated the Open Records Act in denying a request for a "report" prepared by the Owensboro-Daviess County Ethics Board regarding a specified individual, which it characterized as a "confidential advisory opinion." Having concluded that the OMPC failed to satisfy its burden of proof relative to KRS 61.878(1)(a), and that its reliance on KRS 61.878(1)(k) was misplaced, this office then addressed whether the OMPC properly relied upon KRS 61.878(1)(l), pursuant to which Article IV, Section 8(B) of the City of Owensboro and the Daviess County Ethics Code, adopted by joint ordinance, was purportedly incorporated into the Act. Section 8(B) provided that advisory opinions by the Ethics Board remained confidential unless the requester waived the confidentiality; however, the OMPC cited "no state statute that prohibits disclosure of or provides authority for an Ethics Board to issue confidential opinions." 99-ORD-219, p. 9. Of particular significance, this office concluded:
KRS 65.003 makes no provision for confidential advisory code of ethics opinions. In fact, it presents a statutory scheme of openness and accountability . See KRS 65.003(d).
Absent a state statute authorizing confidential advisory code of ethics opinions, OMPC cannot enact an ordinance that is repugnant to the statutory scheme set forth in KRS 65.003 and the Open Records Act. Thus, we conclude the OMPC improperly relied upon KRS 61.878(1)(l) as authority for withholding access to the Ethics Board's opinion.
99-ORD-219, p. 10. This logic applies with equal force on the facts presented.
In 02-ORD-44, this office adopted the reasoning of 97-ORD-90 in reaffirming that the specific confidentiality provision codified at KRS 11A.080(2), which applied in that context, "overrides KRS 61.878(3)," noting that KRS 11A.080(2) "does not extend to records generated in the course of a KRS 11A.100 adjudicatory hearing." Id., p. 3. At issue in that appeal was a request for minutes of the Executive Branch Ethics Commission's May 11, 2001, meeting at which the Commission initiated a preliminary investigation of the requester's conduct; the Commission ultimately terminated the investigation and issued a "termination letter" to him. Id., p. 2. This office concluded that "a finding of no probable cause is not a final determination such as that reached at the conclusion of a full-blown adjudicatory hearing conducted under KRS 11A.100(3)." Id., p. 4. Just as the subject investigation "did not proceed to an adjudication but was terminated in the preliminary investigative phase," the investigation at issue in both 07-ORD-201 (adopting 97-ORD-90 and 02-ORD-44) and 07-ORD-202 was terminated under KRS 11A.080(2).
Critical to our analysis here is the fact that KRS 11A.080(2), the more specific of the two statutory provisions, dictated the result in each of the decisions upon which the Board relied; 5 however, Chapter 11A, entitled the "Executive Branch Code of Ethics, " unquestionably applies only to investigations conducted by the Executive Branch Ethics Commission. 6 Pursuant to KRS 11A.015, "[a]n agency that is directed by statute to adopt a code of ethics [such as the Board] shall be exempt from KRS Chapter 11A. . . ." Although the Board acknowledged Mr. Brumley's position that KRS Chapter 11A is not applicable in responding to his appeal, it emphasized that "the language adopted for the Joint Ethics Board ordinance is substantively the same." Contrary to the Board's implicit assertion, the parallels between its ordinance and Chapter 11A undermine rather than validate its position.
In OAG 99-10, this office recognized that KRS 82.082, commonly known as The Home Rule Statute, 7 "delegates to cities the broad power to govern, but it also bars cities from legislating in certain areas. Specifically, the General Assembly prohibits a city from enacting an ordinance that is expressly prohibited by statute." Id., p. 2. Said another way, "an ordinance enacted pursuant to a state cannot violate the statutory law of the state. That municipal ordinances stand inferior to, and are subordinate to the laws of the state, is a basic principle."
City of Owensboro v. Board of Trustees, City of Owensboro Employees Pension Fund, 301 Ky. 113, 190 S.W.2d 1005, 1008 (1945). Pursuant to KRS 61.871, "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." With the exception of KRS 61.878(1)(l), which incorporates the relevant provisions of KRS Chapter 11A into the Act, the Board cited no exception authorizing nondisclosure of the requested investigative records, "and this office as well as the courts have consistently recognized the public's right of access to such records when final disciplinary action has been taken or a decision to take no disciplinary action has been made . See, e.g.,
Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001); OAG 81-345; 93-ORD-117; 95-ORD-47; 99-ORD-164; 00-ORD-5; 02-ORD-140; 04-ORD-031." 07-ORD-241 (involving a request for grievances, etc.), p. 4 (emphasis added).
Although this office is mindful of the principle that "the question of whether an invasion of privacy is clearly unwarranted is intrinsically situational, and can only be determined within a specific context," 8 this office has generally held "that the privacy interests of public employees against whom complaints or grievances have been leveled or allegations made, and the final action relative to those complaints, grievances, or allegations, including the decision to take no action , are outweighed by the public interest in monitoring agency action." 07-ORD-241, p. 4. Likewise, in Palmer the Court rejected a police officer's argument that his resignation precluded final action by the agency relative to allegations made against him and that all records that were related thereto qualified for exclusion under KRS 61.878(1)(i) and (j), the "preliminary documents" exceptions. In so doing, the Court adopted the reasoning of this office in 00-ORD-107 (copy attached hereto and incorporated by reference), wherein the Attorney General held that " the fact that the agency decided to take no further action on the complaint or that the investigation was preempted by the [employee's] resignation, in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint ." 9 (Emphasis added.)
Applying the foregoing principles to the case at hand, the necessary implication is that a "termination" does constitute a "final determination" for the purpose of determining whether the records in dispute must be produced given that KRS Chapter 11A does not apply , nor does the cited ordinance which, in relevant part, mirrors it, prevail over the Open Records Act. Because records of this nature are generally subject to inspection under the Open Records Act, if adopted in whole or in part as the basis for the final action of the agency, including the decision to take no action, or "terminate" the subject investigation, the Board violated the Open Records Act in denying Mr. Brumley's request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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 In order to "avoid any confusion," Mr. Brumley clarified that his request was "for the entire file, including electronic recordings." Although Mr. Brumley also requested "a copy of all the minutes of the Bardstown/Fairfield/Nelson County Ethics Board for the year 2009," the Board honored this request.
2 The Board initially responded in a letter dated August 28, 2009, but subsequently corrected a typing error in the final sentence and forwarded a second letter to Mr. Brumley on September 2, 2009, which, in relevant part, was otherwise identical.
3 Pursuant to KRS 11A.080(2):
All [Executive Branch Ethics Commission] proceedings and records relating to a preliminary investigation shall be confidential until a final determination is made by the commission, except:
(a) The commission may turn over to the Attorney General, the United States Attorney, or the Commonwealth's Attorney of the jurisdiction in which the offense allegedly occurred, evidence which may be used in criminal proceedings;
(b) If the alleged violator publicly discloses the existence of a preliminary investigation, the commission may publicly confirm the existence of the inquiry, and, in its discretion, make public any documents which were issued to either party;
(c) If the matter being investigated was referred to the commission from another state agency, the commission may inform the referring state agency of the status of any preliminary investigation and of any action taken on the matter.
KRS 11A.080(3) provides:
If the commission determines in the preliminary investigation that the facts are not sufficient to constitute a violation of this chapter, the commission shall immediately terminate the investigation and notify in writing the complainant, if any, and the person alleged to have committed a violation. The commission may confidentially inform the alleged violator of potential violations and provide information to ensure future compliance with the law. If the alleged violator publicly discloses the existence of such action by the commission, the commission may confirm the existence of the resolution and, in its discretion, make public any documents which were issued to the alleged violator.
4 References to "consolidated local government" were later added throughout KRS 65.003.
5 It is axiomatic that when two statutes concern the same or similar subject matter, the specific shall prevail over the general. Stogner, supra, at 835; 02-ORD-19; 03-ORD-222; 07-ORD-233. The General Assembly is also "presumed to be aware of the existing law at the time of enactment of a later statute." Id .
6 Pursuant to KRS 11A.010(2): "'Commission means the Executive Branch Ethics Commission[.]" Chapter 11A expressly applies to a list of "[p]ublic servant[s]" identified at 11A.010(9), including "The Governor," as well as "[a]ll employees in the executive branch including officers as defined in subsection (7) of this section and merit employees[.]" KRS 11A.010(9)(h).
7 KRS 82.082 provides:
(1) A city may exercise any power and perform any function within its boundaries, including the power of eminent domain in accordance with the provisions of the Eminent Domain Act of Kentucky, that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute.
(2) A power or function is in conflict with a statute if it is expressly prohibited by a statute or if there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes including, but not limited to, the provisions of KRS Chapters 95 and 96.