Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the facts on appeal being in dispute, we are unable to conclusively resolve the issues presented in favor of or against the Cumberland City Council. If the allegations made by complainant Carl Hatfield in his April 13, 2010, letter are true, the Council violated KRS 61.815 at its March 9, 2010, meeting by failing to state the reason for the closed session in the motion that preceded it, by failing to properly vote on the motion, by discussing matters other than those publicly announced in open session, and by failing to indicate whether the personnel matters to be discussed focused on either possible appointment, possible discipline, or possible dismissal of a member or employee. 1 If the allegations made in his April 14 complaint are true, the Council violated KRS 61.835 by failing to record minutes of action taken at the March 9 meeting "setting forth an accurate record of votes and actions" at that meeting. If, on the other hand, the Council truthfully defended its position in its April 23, 2010, letter to this office, we find some, but not all, of the violations of the Open Meetings Act Mr. Hatfield alleges to be substantiated, including violation of KRS 61.846(1), based on the failure to respond to his complaints.
By letter dated April 23, 2010, Cumberland City Attorney S. Parker Boggs disputed Mr. Hatfield's allegations. He observed:
The official approved minutes of the March 9, 2010, regular monthly meeting of the Cumberland City Council were approved by majority vote on April 13, 2010 with Councilman Carl Hatfield casting the lone vote against approval. Mr. Hatfield raised the question/discrepancy in the March 9, 2010 minutes about "all in favor" for the Motion to go into executive session on March 9, 2010. Mr. Hatfield stated that he voted in opposition of the Motion. The Council's recollection was that he voted against it and then changed his vote to approve after he asked, "Why are we going into closed session? You have to give the reason. What's this all about?" He subsequently consented to the executive session and participated in the executive session on March 9, 2010 and the minutes were approved at the next regular meeting reflecting that fact notwithstanding his objection to the approval of the minutes.
With reference to the allegations concerning the content of the minutes, Mr. Boggs advised:
Mr. Hatfield submitted a draft of the "unapproved minutes" which does not contain the "All in favor" vote tally with his appeal . . . . However, the official approved minutes contain the "All in favor" tally.
Mr. Boggs did not respond to Mr. Hatfield's remaining allegations. Nor did he challenge the adequacy of the appeal in light of its unusual procedural posture. 2
The Cumberland City Council violated KRS 61.846(1) by failing to respond in writing, and within three business days, to Mr. Hatfield's complaints. The Attorney General reached the same conclusion, directly, in 08-OMD-113 and 09-OMD-135, and, indirectly, in 09-OMD-051. We will not belabor this issue. KRS 61.846(1) is unambiguous. It recognizes no exceptions. The presiding officer, or an individual acting under her authority, must issue a timely written response to an open meetings complaint without regard to the identity of the complainant or the content of the complaint. There is no reason why the Cumberland City Council should be held to a lesser standard.
If true, Mr. Hatfield's complaint states four violations of KRS 61.815(1). That statute provides:
(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
To paraphrase the Kentucky Court of Appeals in a separate opinion: The language of the statute directing agency action is exact. 3 It requires public agencies to give notice in open session of: 1) the general nature of the business to be discussed in closed session; 2) the reason for the closed session; and 3) the specific KRS 61.810 exception authorizing the closed session.
The minutes of the March 9 meeting reflect that "a motion [was made] to go into executive session pending litigation/ personnel KRS 61.810 Sub B." No reference was made to the reason for the closed session or the exception authorizing the closed session. The minutes of the meeting support Mr. Hatfield's allegation that the Council violated KRS 61.815(1)(a), and the Council does not contest the allegation. We find that the Council violated KRS 61.815(1)(a). Accord, 08-OMD-113 (enclosed) .
The minutes reflecting the vote on the motion to go into closed session are in dispute. Mr. Hatfield maintains that no vote was taken on the motion to go into closed session, but that the "Mayor proclaim[ed] 'all in favor.'" He further maintains that the minutes, as approved at the April 13 meeting, were modified to reflect a unanimous vote. Hence, the "draft minutes" circulated to the Council members on April 12 state:
Yvonne Gilliam made a motion to go into executive session pending litigation/ personnel 61.810 sub B. Jerry Gilliam seconded the motion. The council broke for executive session at 7:45 and returned at 9:00. The Mayor called the meeting back to order and reported no action taken.
The minutes as approved, over Mr. Hatfield's objection, state:
Yvonne Gilliam made a motion to go into executive session pending litigation/ personnel KRS 61.810 Sub B. Jerry Gilliam seconded the motion. All in favor. Motion carried. The council broke for executive session at 7:45 and returned at 9:00. The Mayor called the meeting back to order.
If Mr. Hatfield's allegation is true, the Council violated KRS 61.815(1)(b) by failing to conduct a vote on the motion to go into closed session.
The Council may have exacerbated this violation by modifying the minutes of the March 9 meeting at the April 13 meeting "to show something other than what had actually occurred at the previous meeting." OAG 77-494, p. 2. In 04-OMD-179, a copy of which is enclosed, the Attorney General recognized that "draft minutes [of a public meeting] could only be changed if they inaccurately reflected the vote actually taken by the [agency]." Quoting from this early open meetings opinion, we reasoned:
[T]he minutes may be amended at a subsequent meeting to conform them to the facts, but not to reflect a change in position on the matter involved in the question voted on. If through inadvertence the minutes have been inaccurately made, for example where the minutes failed to show the yeas and nays as actually voted, it is legal to correct the minutes according to the truth. It would be improper, however, to change the minutes to show something other than what had actually occurred at the previous meeting. To do this would be tantamount to falsification of records.
04-OMD-179, p. 9 quoting from OAG 77-494; see also OAGs 78-346, 78-796, 79-96. The Council's recollection of the April 13 discussion of the minutes from the March 9 meeting is clearly at odds with Mr. Hatfield's recollection. Suffice it to say that minutes can only be corrected "to reflect the truth of what occurred." Any modification of the minutes to reflect compliance with KRS 61.815(1)(b) if, in reality, the Council did not comply "would lessen, if not destroy, the faith of the public in the verity and permanence of public records."
Janutola & Comadori Construction Co. v. Taulbee, 229 Ky. 213, 16 S.W.2d 1026, 1052, cited in OAG 78-346.
Finally, Mr. Hatfield alleges that the Council discussed in closed session matters other than those publicly announced in open session in contravention of KRS 61.815(1)(d), and that it failed to indicate whether the personnel matters to be discussed focused on possible appointment, or possible discipline, or possible dismissal of an individual member or employee in contravention of KRS 61.815(1)(a). The Council addresses neither of these allegations in its belated response to his appeal. Mr. Hatfield's allegations, if true, support a finding that the Council violated the referenced provisions. See 08-OMD-113 (Council refutes allegation that unauthorized discussion took place in closed session, but Attorney General reminds Council 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"); see also, 04-OMD-179 (agency must state, during open session, that it is going into closed session to discuss "either the appointment, or the discipline, or the dismissal of an employee or member of the agency, indicating which of these particular actions is contemplated"). The Council's silence on these issues leads us to conclude that the alleged violations occurred. In the absence of proof to the contrary, we must assume the truthfulness of Mr. Hatfield's allegations.
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.
Carl HatfieldLoretta CornettSteven Parker Boggs
Footnotes
Footnotes
1 No set of facts exist that support a violation of the Open Meetings Act based exclusively on the presence of the agency's attorney in a closed session conducted pursuant to KRS 61.810(1)(c). The presence of the agency's attorney does not, ipso facto, authorize a closed session, or, ipso facto, render the closed session improper. Each case turns on its facts. We therefore find Mr. Hatfield's final allegation of an open meetings violation unsubstantiated.
2 Mr. Hatfield privately submitted his "complaint" to Mayor Loretta Cornett "to benefit [her] in planning forthcoming council meetings." It is unclear whether he intended to formally pursue this matter pursuant to KRS 61.846(1) until the Mayor made the contents of the letter known at the April 13 meeting. Because the letters identify the alleged violations and proper remedial action per KRS 61.846(1), and because the City Council raised no challenge to their adequacy, we treat them as a proper open meetings appeal. KRS 61.846(2); 40 KAR 1:040 Section 1.
3 Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).