Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the actions of the Joint Board of Ethics of the Cities of Bardstown, Fairfield and the County of Nelson, Kentucky, prior to as well as during the special meeting it held on October 19, 2009, violated the Kentucky Open Meetings Act. As in 09-OMD-169, 09-OMD-182, and 09-OMD-213 (prior decisions involving these parties), the record on appeal confirms that the Board violated KRS 61.815(1)(a) in failing to specify the provision of KRS 61.810 authorizing the first closed sessions held; referencing an item listed on the agenda for the meeting is not a substitute for strict compliance. The Board also violated KRS 61.815(1)(a) in failing to specify which particular action of those identified at KRS 61.810(1)(f) was being contemplated prior to entering into the second closed session. Although the question presented is a close one, this office is not prepared to say that the agenda item of "Minutes - October 7, 2009" was so vaguely worded that fair notice could not be imputed to the public or that discussion of related issues exceeded the scope of that item.
By letter directed to Chairperson Christina Bradford on January 4, 2010, Kevin Brumley submitted a complaint regarding the Board's "repeated violation(s)" of the Act. Mr. Brumley made five allegations regarding the October 19, 2009, special meeting in particular, each of which, in relevant part, appears below along with Ms. Bradford's response to each of the allegations:
1. There was no Notice and Agenda posted as required of a "special meeting" within 24 hours on the meeting [room] door, or any door for that matter at City Hall at 8:17 [a.m.] 10-19-09[;]
Response: Please be advised that an agenda for the 10-19-09 meeting was posted at City [sic] and provided to the media on 10-16-09. On the morning of 10-19-09, we were instructed by the Attorney General's [O]ffice's Counsel and via 09-O[M]D-169 just received that morning, that this agenda required more specificity regarding why the Jt. Ethics Board planned to go into closed sessions pursuant to KRS 61.810. According to this direction, the previously posted agenda was replaced with a more procedurally correct agenda. This corrected agenda was promptly provided to the media as well. No substantive changes were made to the agenda regarding subjects to be discussed.
2. The [Board] "approved" the 10-07-09 minutes, at the illegal 10-19-09 special meeting, as presented by [Ms.] Bradford knowing that the minutes as presented to the Board, were FALSE. KRS 61.[810](1)(f) having been illegally injected into the 10-07-09 minutes that [Ms.] Bradford did not put in the record at the 10-07-09 meeting [sic]. The Kentucky Revised Statute was illegally put into the 10-07-09 minutes on 10-19-09 to "procedurally" "correct" the Open Meeting [s] Act violations at the October 7[,] 2009 meeting.
Response: At the 10-19-09 meeting, the Jt. Ethics Board discussed the recently received AG's [Decision] 09-O[M]D-169 requiring that the Jt. Ethics Board cite specifically to the subsection of KRS 61.810 for going into closed sessions. The Jt. Ethics Board discussed and unanimously approved correcting the 10-07-09 minutes to accurately reflect the matters discussed in closed session at the 10-07-09 meeting.
3. [Ms.] Bradford once again on 10-19-09, in violation of [p]arliamentary procedure, made a motion as the Chairperson, to go into closed session and in doing so, [she] failed to state the [KRS] and any of the 13 statutory exemptions allowing you to go legally from an open session into a closed session.
Response: As Chair, and in accordance with II of the stated corrected agenda, I specifically noted the reason for going into closed session to discuss pending litigation involving a public agency under KRS 61.810(1)(c).
4. Upon coming out of the illegally closed session, [Ms.] Bradford, Chairperson, allowed a discussion that was NOT on the 10-19-09 special meeting agenda, in direct contradiction of the Open Meetings Act that deals with "special meetings[.]" This discussion was brought up by the Board[']s Administrative Assistant, and Official Custodian of Records, Barbie Bryant. She wanted to know if it was her " responsibility " to go back into the minutes and " correct " the minutes. The [Board] voted to retain Thomas A. Donan to research Ms. Bryant's question. . . .
Response: The Jt. Ethics Board is entitled to retain legal counsel to ascertain its rights and obligations to [sic] pending litigation, including the AG's [Decision] 09-O[M]D-169.
5. Then [Ms.] Bradford, Chairperson, made another motion . . . [and failed to satisfy KRS 61.815(1)(a) relative to KRS 61.810(1)(f) before going into closed session] .
Response: At the 10-19-09 meeting, the Jt. Ethics Board followed the procedural directions of the AG's Office by stating that it was going into closed session under IV of the corrected agenda for the purpose of discussions or hearings regarding a potential ethics violation that might lead to the appointment, dismissal, or discipline of an individual employee, member or student under KRS 61.810(1)(f).
To remedy the alleged violations, Mr. Brumley proposed that Ms. Bradford "openly and publically [sic] declare that the entire meeting of October 19[,] 2009 was held in direct contradiction of Kentucky's Open Meeting [s] Act, and, as such, [everything] . . . that was discussed on 10-19-09 be declared NULL and VOID. " Mr. Brumley also proposed that "any citizen of Bardstown, Fairfield, or the County of Nelson, damaged by any actions (litigation) discussed illegally in [the] closed session [held under KRS 61.810(1)(c)], be justly compensated by [Ms. Bradford]" and that Ms. Bradford should be responsible for any and all fees "incurred by the taxpayers of Bardstown, Fairfield and the citizens of Nelson County[,] Kentucky to 'retain' [Mr.] Donan, to 'research' items illegally discussed [as described at Item 4 of his complaint]." Finally, Mr. Brumley proposed that Ms. Bradford "contact the local media" to apologize to the public for the repetitive violations of the Act on October 19, 2009.
By letter dated January 12, 2010, Mr. Brumley initiated this appeal, including numerous exhibits (pictures of the meeting room door, audio recordings of the meetings in question, etc.) in support of his position. Upon receiving notification of Mr. Brumley's appeal from this office, Mr. Donan responded on behalf of the Board, in relevant part, as follows:
1. AGENDA: . . . On October 14 the meeting was tentatively rescheduled for October 19, 2009[.] Kevin Brumley was present on October 14. On October 16, 2009 Barbie Bryant transmitted an Agenda by facsimile to the media between 15:52 hours and 15:55 hours. The Agenda transmitted on Friday reflected the date, meeting time and location. It did not contain the correct citation to KRS 61.810 that was the basis for the Board going into Closed Session to consider an Ethics Complaint filed by Mr. Brumley. In reviewing the Agenda in light of 09-OMD-169, the Agenda was amended on October 19, 2009 [to include the specific exception]. . . . This Amended Agenda was transmitted to the media on October 19, 2009 between 10:29 hours and 10:31 hours. The Agenda was not posted on the Meeting [Room] Door until the Amended Agenda was transmitted. The Board agrees that there was a violation of the Open Meetings [Act] since the Agenda was not posted within twenty-four hours on the Meeting Door. However, Mr. Brumley was present at the October 14 meeting where the new date and time were established. Further, the media were timely notified of the date and place of the Special Meeting and therefore complied with the spirit of the [Act]. . . .
2. OCTOBER 7 MINUTES: The Board agrees that the reference to KRS 61.810(1)(f) should not have been inserted into the Minutes of the October 7 meeting since no reference to the [statutory exception] was made in Open Session prior to the Motion to go into Closed Session. The purpose for the Closed Session was accurately stated in general terms and was an exception authorized by the statute.
3. CLOSED SESSION ON LIGITATION: As stated in the Complaint, the Board [Chairperson] and Member, [Ms.] Bradford, made a Motion: As stated in the Agenda, I will make a Motion to go into Closed Session to discuss pending or proposed litigation. Her Motion referenced the Amended Agenda which cited KRS 61.810(1)(c). The issue is whether the incorporation by reference of the Agenda with the correct citation is sufficient to satisfy the Open Meeting [s Act]. . . . Mr. Brumley quotes [Ms.] Bradford as stating "We are now going into Closed Session to meet with the City Attorney to discuss pending litigation. " This was not the wording of the Motion which referenced the proposed or pending litigation. He goes on to dispute whether the adverse ruling in the Attorney General's Open Records [D]ecision constitutes pending litigation. 1 Since the time to file an Appeal in Circuit Court requires filing within thirty days. [sic] The Board would submit that the Motion itself is what is critical and not the ministerial remarks made after the Motion passed. The primary issue is whether the specific statute which was the basis for the Closed Session can be incorporated by reference to the Agenda. The Board submits that this constitutes compliance with the Statute. . . . It is also the Board's position that it is exempted from the requirements of KRS 61.810 by the exclusions set forth in KRS 61.815(2)[.]
4. DISCUSSION OF DUTIES REGARDING MINUTES: Next Mr. Brumley complains about a discussion between the Board [and its] Administrative Assistant concerning her duties in preparing the Minutes of the previous meeting. The Agenda and corrected Agenda both reflected a discussion of Minutes for October 7, 2009.
5. MOTION FOR CLOSED SESSION TO DISCUSS ETHICS COMPLAINT: . . . In his Complaint Mr. Brumley claims that the Motion to go into Closed Session was not sufficiently specific to permit a member of the public to ascertain what the Closed [Session] was about. The Motion specifically stated that the Closed Session involved a discussion on a potential ethics violation. Since this is an Ethics Board, it [was] obvious that the discussion [would] not involve appointment of a person. Similarly the discussion [would] not involve a student.
The discussion could potentially [have led] to the dismissal or discipline of an individual employee or member of any of the governmental entities which form a part of the Ethics Board. In this case there are three governmental entities represented by the Ethics Board. Ironically, the Board went into [c]losed session to discuss a Complaint filed by Mr. Brumley against an employee of one of the three governments.
Mr. Brumley also claims that KRS 61.810(1)(f) does not apply because the Ethics Board has no employees of its own. As stated at Page 7 in 01-OMD-18, . . . this argument "defies logic" given the role of the Ethics Board. The reasoning of 01-OMD-18 was cited with approval most recently in 09-OMD-132.
Based upon the following, this office finds that the Board failed to comply with KRS 61.815(1)(a) before going into closed session each time but was authorized to discuss the specified topics under authority of KRS 61.810(1)(c) and (1)(f), respectively. In discussing the minutes from its October 7, 2009, meeting, as listed on the agenda for the October 19, 2009, meeting, and in discussing related issues, the Board did not act improperly. Because the Board has acknowledged that failing to provide a proper notice for the special meeting "at least twenty-four (24) hours" in advance constituted a violation of the Act (KRS 61.823), and that minutes for the October 7, 2009, meeting should not have been altered to reflect compliance with KRS 61.815(1)(a), given that a violation of this provision is what actually occurred, a brief analysis of these issues will suffice.
The Board "agrees that there was a violation of the Open Meetings [Act] since the Agenda was not posted within twenty-four hours on the Meeting [Room] Door. " In construing KRS 61.820, pursuant to which all meetings of all public agencies in Kentucky, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public" and a "schedule of regular meetings shall be made available to the public," and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized that failure to comply with all of the provisions of KRS 61.823 constitutes a violation of the Open Meetings Act. 92-OMD-1840, p. 3; 02-OMD-11; 97-OMD-90. Based upon the overwhelming weight of legal authority, this office must conclude that the Board violated the Open Meetings Act in admittedly failing to comply with some of the notice requirements codified at KRS 61.823 prior to holding a special meeting on October 19, 2009. More specifically, the Board initially failed to provide a sufficiently detailed agenda to provide fair notice to the public in violation of KRS 61.823(3), an error which it promptly corrected, and then violated KRS 61.823(4)(a) and (b) in failing to both deliver a corrected notice to each media organization which had filed a written request and to post a corrected notice, in a conspicuous place at both the building where the meeting was scheduled to take place and the building which houses the headquarters of the Board, at least 24 hours in advance. Because the law is well-settled regarding application of these requirements and the Board has acknowledged committing said errors, further discussion is unwarranted.
With regard to modification of the minutes from the October 7, 2009, meeting, the Board "agrees that the reference to KRS 61.810(1)(f) should not have been inserted into the Minutes of the October 7 meeting" since no such reference was actually made then. KRS 61.835 requires public agencies to maintain "an accurate record of votes and actions taken" at every meeting. (Emphasis added.) As a corollary of this rule of law, the Attorney General has opined that public agencies cannot direct the modification of the draft minutes "to show something other than what . . . actually occurred at the previous meeting." OAG 77-494, p. 1. To do this would be tantamount to falsification of records. Accord, OAG 78-346. On this issue, the analysis contained in 06-OMD-103 (pp. 3-4) is controlling; a copy of that decision is attached hereto and incorporated by reference. Again, the Board has acknowledged this error and further discussion is unwarranted.
With regard to invocation of KRS 61.810(1)(c) and the issue of "whether the incorporation by reference of the Agenda with the correct citation is sufficient" to satisfy KRS 61.815(1)(a), Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997) and prior decisions of this office refute the Board's position that "this constitutes compliance with the Statute." To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a)-(d) which, in relevant part, states:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
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." Ratliff, supra, at 923 (citation omitted). 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.
In this appeal, the Board does not dispute that no statutory exception was referenced prior to going into closed session to discuss pending or proposed litigation, arguing instead that Chairperson Bradford's reference to the corrected agenda, which contained a citation, was adequate. Just as in 09-OMD-169 (Brumley/Joint Board of Ethics) , which the Attorney General adopted in 09-OMD-182 and 09-OMD-213, the record confirms that the Board's announcement was therefore deficient. Although this office has acknowledged that KRS 61.815(2) "lends itself to conflicting interpretations," the Attorney General has taken a position over the years which is contrary to the Board's interpretation, concluding that a "literal interpretation" does not "comport with the legislative intent." OAG 80-248, p. 2. On this issue, the analysis contained in 01-OMD-181 (pp. 9-14) is controlling; a copy of that decision is attached hereto and incorporated by reference. Because the Board is "not exempt, per se, from complying with the Open Meetings Act, " this office remains of the view that it must comply with the requirements for conducting a closed session codified at KRS 61.815(1)(a). Id., p. 11. In light of this determination, the question becomes whether the Board violated the Act by discussing matters that did not appear on the agenda for the special meeting.
On both the original and the corrected agenda for the October 19, 2009, meeting, the Board listed "Minutes - October, 2009" as the first item of business. According to Mr. Brumley, this item was not sufficiently specific to satisfy KRS 61.823(3) and the discussion of whether Ms. Bryant was responsible for "correct[ing]" the minutes and the related vote which followed were beyond the scope of this item. This office must respectfully disagree. Although the question is a close one, and the Board arguably could have employed more specific language in describing this item, the discussion which ensued was directly related to that item of business and fair notice to the public could thus be imputed. As in 03-OMD-149 ( item described as "Policy and Bylaws"), a copy of which is attached hereto and incorporated by reference (pp. 4-7), this office finds that the language used cannot be equated with such vague descriptions as "old business" and "new business." Consequently, neither the discussion of whether to revise the minutes nor the vote which followed were beyond the scope of that item as described.
Mr. Brumley's final complaint was that Chairperson Bradford failed to properly invoke KRS 61.810(1)(f). 2 This office has consistently recognized that "the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal, or disciplinary action," but "is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons." 97-OMD-110, p. 3. In other words, a public agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) "by announcing, in open session, the general nature of the business to be discussed in closed session (appointment, discipline, or dismissal of an individual employee) , the specific reason for the closed session (which of these particular actions is contemplated), and which of the exceptions codified at KRS 61.810 is being invoked to authorize the closed session (KRS 61.810(1)(f))." 09-OMD-171, p. 6. In failing to specify which action was being contemplated, the Board again failed to satisfy KRS 61.815(1)(a).
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 A discussion of whether to appeal from an adverse decision by this office within thirty (30) days per KRS 61.846 (Open Meetings) or KRS 61.880 (Open Records) falls within the parameters of KRS 61.810(1)(c). See 97-OMD-96 (copy enclosed). Because Mr. Brumley did not raise this argument in his original complaint, further discussion is unwarranted.
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2 Although Mr. Brumley cites "[a]dditional reasons" why KRS 61.810(1)(f) was not the "appropriate exception" on appeal, namely that the Board was not discussing "an employee, student or member of the Joint Board of Ethics, " but was discussing an ethics complaint filed against "an official of Nelson County," Mr. Donan was correct in asserting that Mr. Brumley's position is contrary to 01-OMD-18 (copy attached). This office has long recognized that "to say that 'members' refers only to members of the board would render the use of the term 'member' practically meaningless." Id., p. 6, citing OAG 74-497, p. 3. Further discussion is unnecessary given that Mr. Brumley did not raise this argument in his original complaint.
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