Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Nelson County Fiscal Court violated the Open Meetings Act at its regular meeting on March 2, 2010. For the reasons that follow, we find that the Fiscal Court violated the Act.
By letter dated March 19, 2010, Kevin Brumley submitted a written complaint to Nelson County Judge/Executive Dean Watts, in which he alleged that at its March 2 meeting the Fiscal Court went into a closed session without following the procedures required by KRS 61.815(1). Specifically, he alleged that the Fiscal Court entered a closed session at the conclusion of its regular business with no justification except for an announcement that had been made at the beginning of the meeting, to the effect that the Fiscal Court would later be going into closed session to discuss the "sale or acquisition of real property" pursuant to "KRS 61.810." As a means of remedying the alleged violations, Mr. Brumley proposed that the Fiscal Court make a public apology through local media, repeat in open session any discussions that occurred in closed session, and declare null and void any "action discussed" in the closed session. Having received no reply as required by KRS 61.846(1), he initiated this appeal on March 29, 2010.
Mr. Brumley provided with his appeal a tape recording of the March 2 Fiscal Court meeting. At the beginning of the tape, the County Judge/Executive states: "Nelson Fiscal Court will meet in closed session at the tail end of our regular business meeting as per KRS 61.810 to discuss the sale or acquisition of real property. " After more than thirty minutes of unrelated business conducted by the Fiscal Court, there can be heard a "motion to go out of regular session and into closed session, " without any further explanation. The closed session immediately follows the vote on the motion.
The Fiscal Court's response to this appeal was provided by Nelson County Attorney John S. Kelley, Jr., on April 1, 2010, incorporating a responsive letter to Mr. Brumley of the same date. Mr. Kelley makes no real defense regarding the failure to make a timely response to Mr. Brumley's complaint, and we thus conclude that the Fiscal Court committed a procedural violation of KRS 61.846(1). As to the allegations of what took place at the March 2 meeting, Mr. Kelley does not deny the conduct of the Fiscal Court, but argues that it complied with the Open Meetings Act or, at least, that any violation was harmless as to Mr. Brumley.
Mr. Brumley makes three basic complaints regarding the closed session. First, he asserts that the Fiscal Court failed to cite the applicable subsection of KRS 61.810 which authorized the closed session. In response, Mr. Kelley argues that, by identifying the purpose of the closed session as discussing the sale or acquisition of real property, the Fiscal Court made it "obvious that ? the closed session falls under the exceptions in KRS 61.810(1)(b)." Even so, the Fiscal Court did not comply with KRS 61.815(1)(a), which explicitly and separately requires notice of "the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. " (Emphasis added). Since the Fiscal Court identified no specific provision of KRS 61.810, the closed session was conducted in violation of the Open Meetings Act. 09-OMD-169.
Mr. Brumley's second complaint is that the Fiscal Court did not specify whether the real property in question was to be sold or acquired. We are aware of no published cases or decisions of this office which have required a public agency to make this distinction when invoking KRS 61.810(1)(b). We do note, however, that the Fiscal Court never elaborated on "the reason for the closed session, " as required by KRS 61.815(1)(a). Our decisions regarding KRS 61.810(1)(b), in particular, make clear that some justification must be offered in open session as to why "publicity would be likely to affect the value of a specific piece of property" to be sold or acquired. See, e.g., 10-OMD-059; 03-OMD-047. The Fiscal Court's failure to offer such justification constituted a further violation of KRS 61.815(1)(a).
Thirdly, Mr. Brumley points out that although the Fiscal Court identified the nature of the business to be discussed in closed session, this was not done in close proximity to the motion proposing the closed session. This is another issue as to which we are unaware of any prior decisions on point. Mr. Kelley responds in his April 1, 2010, correspondence to Mr. Brumley:
No statute or case that I could find sets out the standard as to when the notice must take place in the meeting. The only requirement [in KRS 61.815(1)(a)] is that the notice must take place during the meeting, which was done.
Though I was not present at the March 2, 2010 meeting, ? it has been my experience in observing you that you are always at the meetings prior to the start of the meetings. You did not state in your complaint whether or not you did not hear the reason for the executive session. If you were there in a timely fashion as you have been before, I do not understand how this issue is relevant to you since you would have heard all opening announcements. Nevertheless, had you come in late and for some reason you did not otherwise hear the nature of the executive session, then you would have been clearly within your right to inquire as to why the Court was going into executive session. It is my understanding that you made no such inquiry.
It is also my understanding that you attended the meeting and did not raise any of the objections that you currently raise in your complaint. Had you wanted additional information as to any questions regarding the executive session, you should have inquired and they would have been answered provided that they did not jeopardize the discussion to be held in the executive session and the reason for conducting such discussions in the executive session.
Mr. Kelley argues that no Open Meetings Act violation occurred because Mr. Brumley was not "prejudiced" by the lack of statutory notice or the improper timing of that notice. The Act, however, operates for the benefit of the public rather than particular individuals. "[T]he formation of public policy is public business and shall not be conducted in secret." KRS 61.800. "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, 955 S.W.2d 921, 923 (Ky. 1997). There is no requirement of "standing" to bring a complaint under the Open Meetings Act.
Mr. Kelley further cites Chandler v. Bullitt County Joint Planning Comm'n, 125 S.W.3d 851 (Ky. App. 2002), which affirmed a trial court's refusal to void a commission's action authorizing litigation where no one present had raised concerns about the action. The case is not on point, because the only question here is whether the Fiscal Court fulfilled the requirements of the Open Meetings Act. It is not within the powers of the Attorney General under KRS 61.846 to void any action of a public agency. Furthermore, the Act places the burden on the public agency to state the required information about a closed session; it is not the public's burden to inquire.
"The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions." Floyd County Board of Education, supra, 955 S.W.2d at 923. Although the statutes do not set a standard for when the information about the closed session must be given, it is our view that in order to ensure effective notice to the public a standard of reasonableness must govern the proximity in time between the notice required by KRS 61.815(1)(a) and the motion for closed session required by KRS 61.815(1)(b). Ordinarily, reasonableness dictates that no significant amount of time should elapse between the two events, for the simple reason that the public should not be expected to keep in mind the details of the notice while all manner of unrelated business is being discussed. The span of more than thirty minutes, in this case, fails by far to provide the effective notice intended by the Open Meetings Act.
Nor can we, in practical terms, envision any need for the Fiscal Court to separate the notice from the motion in this manner. If the Fiscal Court deems it helpful to make an announcement at the opening of its meeting about the anticipated closed session, nothing prevents it from providing the required information again at the time of the motion in order to comply with the intent of KRS 61.815(1)(a). For the reasons stated, we conclude that the closed session at the Nelson County Fiscal Court's March 2, 2010, meeting was initiated in violation of the Open Meetings Act.
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 BrumleyDean Watts, County Judge/ExecutiveJohn S. Kelley, Jr., Esq.