Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Oak Grove City Council violated the Kentucky Open Meetings Act by going into closed session during its regular meeting on February 16, 2010, for the purpose of discussing "land acquisition. " By failing to specify the "reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session, " the City Council violated KRS 61.815(1)(a). In addition, the City Council failed to demonstrate how "publicity would be likely to affect the value of a specific piece of property to be acquired for public use" as required to properly invoke KRS 61.810(1)(b), 1 the statutory exception upon which the City Council implicitly relied. Given the conflicting evidence presented regarding the actual content of the discussion held in the closed session, this office is unable to find that a violation occurred; however, the City Council has acknowledged that if any subject other than land acquisition was discussed it would constitute a violation of KRS 61.815(1)(d).
By letter directed to Mayor Dan Potter on February 24, 2010, Sarah Hogsed, Editor of The Eagle Post, submitted a written complaint alleging that the City Council violated the Open Meetings Act when it voted to enter into a closed session to discuss "land acquisition" during its February 16, 2010, meeting. More specifically, Ms. Hogsed alleged that the City Council failed to provide notice of the general nature of the business to be discussed in, the reason for, and the specific provision of KRS 61.810 authorizing the closed session per KRS 61.815(1)(a). Ms. Hogsed further asserted that the City Council "did not discuss land acquisition by a public agency. " In alleging a violation of KRS 61.815(d), Ms. Hogsed advised that Mayor Potter had informed her that the City Council "instead discussed a letter in which Kentucky Downs expressed its interested [sic] in placing an off-track betting facility in the [C]ity." Ms. Hogsed, again referring to her conversation with the Mayor, alleged that KRS 61.815(c) was violated when "a vote was taken in that closed session" during which members of the City Council "were asked if they supported an off-track betting facility."
To remedy the alleged violations, Ms. Hogsed proposed that the City Council "acknowledge at the next meeting the violations of the Open Meetings Act and refrain from violating it in the future." She also requested that the City "hold a training session" regarding compliance with the Open Meetings Act for the City Council "that is open to the public." In a timely written response, Jason E. Holland, acting in his capacity as counsel for the City of Oak Grove, referenced KRS 61.810, but partially quoted, without citing, KRS 61.810(1)(b). Mr. Holland acknowledged that "Councilman Randy Pierce made the motion to go into Closed Session to discuss 'land acquisition. '" According to Mr. Holland, that is "a sufficient description of the nature of the topic to be discussed" in closed session. In response to Ms. Hogsed's other allegations, Mr. Holland indicated that "Kentucky law precludes me from disclosing precisely what was discussed" in the closed session; however, Mr. Holland assured Ms. Hogsed "that the City vehemently denies that any inappropriate or unlawful discussions were held during the subject closed session, " and further denied that any votes were taken. The City Council conceded that "[h]ad either of these alleged activities taken place, they certainly would have constituted the violations" alleged. However, Mr. Holland reiterated that "no such activities took place." Ms. Hogsed subsequently initiated this appeal.
On appeal, Ms. Hogsed contends that Mr. Holland misquoted the relevant exception, omitting that it "must be a discussion of a sale or purchase of land by a public agency. " (Original emphasis.) According to information that she received from two members of the City Council, Ms. Hogsed explains, in addition to statements from the Mayor, the City Council "did not go into closed session to discuss land acquisition by a public agency, " and the closed session thus violated the Act. Ms. Hogsed also reiterated her previous argument regarding the City Council's failure to comply with KRS 61.810(1)(a). Finally, Ms. Hogsed explained that since receiving her complaint, Mayor Potter clarified that "the action taken in closed session as a 'straw vote'" concerning which members would support establishment of a private off-track betting facility, which, in her view, still violated KRS 61.815(1)(d).
Upon receiving notification of Ms. Hogsed's appeal from this office, Mr. Holland supplemented his initial response on behalf of the City Council. Refuting her assertion that he previously "misquoted" the relevant exception, Mr. Holland argued that his recitation of KRS 61.810(1)(b) was, in fact, "a direct quote." In addition, Mr. Holland noted that his initial response "in no way argues or otherwise states that the subject land acquisition relates to any party other than the public agency, which is, in this case, the City." The City "fully recognizes," Mr. Holland asserted, that in order to qualify under KRS 61.810(1)(b), "any discussion regarding acquisition of real property would have to be in the context of a purchase by the City itself, rather than by a third party." In his view, the remaining allegations consist of "contested issues of fact." Specifically, Ms. Hogsed claimed that two members of the City Council disclosed the content of the discussion to her, but other members of the City Council, "if court-ordered to do so, would testify that this was not the case." Because Ms. Hogsed's appeal would require this office "to make a determination of fact, which is improper," Mr. Holland requested that her appeal be denied.
Our analysis begins with a review of the fundamental proposition codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided by law shall be strictly construed.
Recognizing that extraordinary circumstances occur which might justify a public agency conducting public business during a closed session, the General Assembly created a number of exceptions to this general rule, which are codified at KRS 61.810(1)(a)-(n). 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:
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). Consequently, "the courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id. Both the General Assembly and the judiciary have thus demonstrated their commitment to "open government openly arrived at." 00-OMD-113, p. 2 (citation omitted).
Decisions issued by the Attorney General over the years relative to compliance with KRS 61.815(1) are consistent with Ratliff, above, in which the Kentucky Supreme Court held that the Board failed to give proper notice during open session of the matters to be discussed in closed session. Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the Court reasoned:
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.
Floyd County Board of Education at 924 (emphasis added).
Of particular significance here, the Attorney General has observed the following on the issue of strict compliance 2 with KRS 61.815(1)(a):
It is the opinion of this office that the Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed.
00-OMD-64, p. 6. Referring to language employed by the Supreme Court in Floyd County Board of Education, above, this office concluded:
In view of the disparate nature of the [fourteen] 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.
Id. (Emphasis added).
Although the record on appeal does not contain a copy of the minutes from the City Council's February 16, 2010, meeting, the current dispute stems from the parties' differing views regarding the legal effect of the notification provided as opposed to the content or lack thereof. It is undisputed that a motion was made (and presumably "carried by a majority vote in open, public session" ) per KRS 61.815(c); however, the record on appeal does not reflect that KRS 61.810(1)(b), "the specific provision of KRS 61.810 authorizing the closed session, " was referenced. The City Council did not specifically dispute Ms. Hogsed's allegation regarding this deficiency or explain this omission. Rather, the City Council maintained its position that "land acquisition" was a "sufficient description" of the business to be discussed. In light of the mandatory language of KRS 61.815(1)(a), the holding of Ratliff, and prior decisions by the Attorney General, this office must respectfully disagree.
As the Attorney General has consistently recognized, "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; 00-OMD-64; 01-OMD-181; 03-OMD-047; 04-OMD-127; 07-OMD-128. Although "land acquisition" may be a minimally sufficient description of the "general nature of the business to be discussed," it is undisputed that the City Council failed to also specify the "reason for the closed session, " i.e., that publicity was likely to affect the value of the subject property; likewise, the City Council failed to demonstrate, both initially and on appeal, how publicity would "directly affect the public's interest financially," the "threshold requirement for invocation of KRS 61.810(1)(b)." 04-OMD-127, p. 7. In the absence of minutes reflecting strict compliance with KRS 61.815(1)(a), this office has expressly rejected the position that use of the description "land acquisition" includes the "rationale about potential effect on valuation." Id., p. 5. Based upon the evidence of record, this office must conclude that the City Council violated the Open Meetings Act in failing to strictly observe all of the requirements codified at KRS 61.815(1)(a) prior to conducting the closed session at issue.
Given this determination, the question becomes whether the City Council erred in discussing matters other than "land acquisition" during the subject closed session. In construing KRS 61.810(1)(b), this office has long recognized:
Only when a public agency is discussing a specific piece of property relative to whether the agency will buy or sell that property and the discussion if made public would likely affect the price of that property, can the matter be discussed in a closed session. Confidentiality is only permissible when the public interest will be directly affected financially.
OAG 80-530, p. 3; 03-OMD-047; 04-OMD-127.
Although Ms. Hogsed maintained that a letter in which Kentucky Downs expressed interest in placing an off-track betting facility in the City of Oak Grove was discussed, relying on her conversation with the Mayor and information that she acquired from two members of the City Council, Mr. Holland "vehemently denies that any inappropriate or unlawful discussions" occurred, noting that different members of the City Council "if court-ordered to do so, would testify that this was not the case." In sum, the conflicting facts of this appeal do not lend themselves to a conclusive resolution of this question; however, the law is unambiguous. More specifically, KRS 61.810(1) provides that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times. . . ." A meeting is defined as "all gatherings of any kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." KRS 61.805(1).
In 98-OMD-94 and 00-OMD-114, the public agencies whose "secret" meetings were challenged had acknowledged that meetings occurred but defended the meetings on various grounds; further, the complainants personally observed the "secret" meetings in progress. Here, the City Council has flatly denied that any discussion of an off-track betting facility or any improper subject occurred. Under these circumstances, the Attorney General is unable to find that a violation was committed although the City Council conceded that if such a discussion had taken place it would constitute a violation of the Act. See 00-OMD-142 (issue concerning actual delivery of meeting notice to city commissioner is factual in nature and the Attorney General cannot resolve a factual dispute in the context of an open meetings appeal); 00-OMD-169 (issue of whether a member of the public voluntarily left or was forcibly removed from the meeting was a factual issue which could not be resolved by Attorney General since evidence was conflicting); 03-OMD-125 (Attorney General is required to review a complaint and response in reviewing an Open Meetings appeal and issue a written decision per KRS 61.846(2); these decisions involve application and interpretation of the Act or questions of law as opposed to factual disputes which this office cannot resolve); see also 07-OMD-128; 99-OMD-167; 99-OMD-203. In contrast to the established violation of KRS 61.815(1)(a), the record on appeal does not contain objective proof to substantiate the claimed violation of KRS 61.815(1)(d).
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.
Sarah HogsedDaniel PotterJason E. Holland
Footnotes
Footnotes
1 KRS 61.810(1)(b) authorizes public agencies to conduct in closed session "[d]eliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency [.]
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2 In 00-OMD-114, this office declined to view a violation of the Open Meetings Act as "technical." At page 3 of that decision, the Attorney General reasoned that "[t]he Act itself does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely 'technical.'" See also 03-OMD-221.
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