Opinion
Opinion By: Jack Conway, Attorney General; Lisa Lang, Assistant Attorney General
Open Meetings Decision
At its June 22, 2010 regular meeting, the Nelson County Fiscal Court entered into closed session to discuss two separate matters, one "pending litigation" and the second, "proposed litigation." This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General otherwise being sufficiently advised, we find that the Nelson County Fiscal Court failed to make an adequate showing under the Open Meetings Act when it went into closed session to discuss "pending litigation. " Accordingly, we cannot affirm its denial of Kevin Brumley's July 6, 2010, open meetings complaint. However, the Fiscal Court did not violate the statute and adequately described the reasons for entering into closed session to discuss "proposed litigation."
In his complaint, Mr. Brumley alleged that the Fiscal Court conducted an illegal closed session when it discussed matters not authorized by KRS 61.810(1)(c). He spent a substantial amount of time discussing the matters he believed were discussed in the closed session and claimed that they pertained to matters not directly related to the Fiscal Court itself. Mr. Brumley speculated that the subject of the pending litigation "was the frivolous County's 2005 'garbage' annexation suit, 05-CI-00559 filed by County Attorney John Kelley against the City of Bardstown," and that the subject of the proposed litigation was threatened litigation against the County Attorney, acting as a private practitioner and as the executor of the Estate of Oreva B. Douglas in a planning and zoning matter, by the Joint City-County Planning Commission of Nelson County.
In correspondence directed to this office, County Attorney Kelley refuted Mr. Brumley's claim that the Fiscal Court improperly discussed "the proposed litigation of John S. Kelley, Jr. by another public agency, the Joint City-County Planning Commission of Nelson County." Mr. Kelley explained:
[T]he Nelson [County] Fiscal Court went into closed session at the request of Magistrate Sam Hutchins, as he wanted the Nelson [County] Fiscal Court to file a lawsuit regarding a certain matter. Mr. Hutchins had previously contacted Judge Executive Dean Watts to have the closed session announced and for the court to go into closed session to discuss the filing of a lawsuit. The lawsuit that was the subject of Magistrate Hutchins request was a lawsuit to be filed on behalf of the Nelson [County] Fiscal Court.
Mr. Kelley requested that the Attorney General dismiss Mr. Brumley's appeal "because it is based upon incorrect facts and invalid assumptions."
Mr. Brumley responded to the final statement that appeared in Mr. Kelley's supplemental response by advising this office that the lawsuit Magistrate Hutchins requested be filed on behalf of the Fiscal Court was, in fact, a lawsuit against Mr. Kelley "in regards to the way he handled the Oreva Douglas estate as the Executor. " He alleged that "County Judge Dean Watts didn't want the public to know that a county magistrate wanted the Fiscal Court to SUE John S. Kelley, Jr." He further alleged that although "the Oreva B. Douglas Plat was laid out and discussed" in the closed meeting, the plat dispute was "a private matter," the actual reason for the closed session was to avoid embarrassment to Mr. Kelley. However, he offered no substantiation for these statements.
In an attachment to his July 21, 2010 letter to this office, Mr. Brumley attached three CDs containing video and audio recordings of the Fiscal Court's June 22, 2010, open session. While the audio is somewhat broken, these CDs confirm that near the beginning of the open meeting Judge Watts states that the Fiscal Court would go into closed session pursuant to KRS 61.810(1)(c) and recites the language of the statute, but provides no further explanation. The second CD depicts Judge Watts soliciting a motion to enter into closed session and he again recites the language of the statute. This clip concludes before the motion is made. On the third CD the County Attorney can be seen explaining that the Fiscal Court is entering into closed session to discuss two issues, one pertaining to pending litigation and the other pertaining to proposed litigation. With respect to the pending litigation he states that it is necessary to enter closed session to discuss litigation strategy. With respect to the proposed litigation, Mr. Kelley indicates that entering closed session is necessary because it relates to litigation strategy and because of the economic impact of discussing that matter in a public meeting. He does not identify with specificity the pending litigation to be discussed and makes no further attempt to describe the proposed litigation.
We find that the Fiscal Court was in violation of the Open Meetings Act with regards to its alleged discussion of the pending litigation, but not with respect to the proposed litigation. The two subjects require two different analyses.
KRS 61.815(1)(a) provides:
Notice shall be given in regular open meeting 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 [.]
In interpreting this provision, the Attorney General has often recognized:
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), this office has determined that notification which does not include a statement of the specific exception(s) 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. 00-OMD-64; 01-OMD-181; 02-OMD-200. Although we have recognized that "given the disparate nature of the twelve exceptions, there can be no bright line test for determining if specific and complete notification has been given," KRS 61.815(1)(a) contemplates notification that "include[s] 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 action."
03-OMD-221, p. 4.
In 98-OMD-105 we determined that a fiscal court violated the Open Meetings Act in failing to observe the requirements for conducting a closed session when it identified the reason for the closed session as proposed litigation against the fiscal court. The fiscal court, we opined:
had two opportunities to explain its decision to conduct a portion of its meeting in a closed session. Both the County Judge and County Attorney responded on behalf of the Fiscal Court. Neither response, however, shed any light on the general nature of the proposed or pending litigation anticipated or the immediacy of the threat of that litigation. From their responses we learn little more than that the litigation does not involve the issue of Squires Road, and that it was threatened "from several quarters, not one. . . ." As noted above, an agency is authorized to discuss its preparation, strategy, or tactics relative to the threatened litigation in a closed session pursuant to KRS 61.810(1)(c), but that provision does not authorize it to maintain absolute secrecy as to the general nature of that litigation.
Returning to 03-OMD-221, there the public agency against which a complaint was brought identified the reason for the closed session as "litigation," but did not elaborate further. At page 4 of that decision, we applied the standard of specificity found in 00-OMD-64 to the reason given for the closed session and concluded:
Clearly, "litigation" does not satisfy this standard. Nor does "litigation" accompanied by a reference to KRS 61.810(1)(c). The requirement that the agency give notice of "the specific provision of KRS 61.810 authorizing the closed session" was added when the Open Meetings Act was amended in 1992, but does not supplant the agency's duty to give notice in the regular open meeting of the general nature of the business to be discussed in closed session, and the reason for the closed session. Together, these requirements import a legislative resolve to enhance the public's right to monitor public official conduct in a public meeting.
Id.
In both 98-OMD-105 and 03-OMD-221, the Attorney General found that the agencies presented insufficient proof that the subject of their contested closed meetings was proposed or pending litigation to permit the public or this office to evaluate their actions. However, the 03-OMD-221 also goes on to state:
As this office has observed, "[T]he Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of the language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed" so as to avoid defeating the purpose which necessitated the closed sessions. 00-OMD-47, p. 6.
Therefore, in determining whether there is a violation of the Open Meetings Act with respect to the litigation exception we must take care to balance the public's right to know with the potential harm that would befall the public if its officials are required to disclose litigation tactics in an open forum. In 01-OMD-41, we held that the Georgetown-Scott County Planning Commission complied with KRS 61.815(1)(a) when it went into closed session for the stated purpose of "discussing pending litigation involving Whistlers Lane vs. Scott County Fiscal Court" (copy enclosed). There, we reiterated the guidelines for public agencies invoking the litigation exception. Specifically:
When the public agency has become a party plaintiff or defendant in a lawsuit, when a public agency has been threatened with litigation, or when the chance of litigation involving that agency is more than a remote possibility, the agency can then legally and properly invoke the exception set forth in KRS 61.810(1)(c). The public agency can at that time discuss in a closed session such matters as strategy, tactics, possible settlement and other matters pertaining to that case or that anticipated or probable case.
Id. citing 93-OMD-119.
In the matter before us now there were two separate litigation matters discussed in closed session. We feel it is necessary to address the issue of pending litigation separately from proposed litigation. As we stated in 01-OMD-41, prior to entering into a closed session to discuss pending litigation it is necessary for the body to identify the specific litigation to be discussed. Litigation currently pending is a matter of public record, therefore, it is difficult to imagine a way in which the public agency would be placed at a strategic disadvantage by making that disclosure. Had the County Attorney or Judge Executive identified the matter on which the discussion was to be held and gone on to state, as was the case here, that the general nature of the business to be discussed was litigation strategy, the Fiscal Court would have been in compliance with the Open Meetings Act.
Discussion of proposed litigation presents a different issue. In our view a public agency may, in many instances, be placed at a strategic disadvantage if it is required to disclose, in advance, actions it might take by either filing suit or responding to a suit against it. In litigation, timing is often a factor. A race to the courthouse may determine the venue in which a matter may be litigated or give the filing party an advantage for one reason or another. Requiring much more of a description than was given here would often times defeat the purpose of the exception entirely. Therefore, we find that the Fiscal Court complied with KRS 61.810(1)(c) in this instance by stating, on the record, that it would enter a closed session to discuss proposed litigation, that the litigation was to be taken on behalf of the Fiscal Court as opposed to responding to potential litigation, and stating that a public discussion of the matter would disclose litigation strategy and have an adverse economic impact.
That being said, a public agency is not permitted to enter into a closed session discuss pending or proposed litigation that has no bearing on the agency itself. Mr. Brumley has alleged that the "pending" litigation was an action which did not involve the City, however, the City claims that the discussion indeed involved litigation which pertained to it directly. Mr. Brumley also made numerous allegations regarding the "proposed" litigation discussed in closed session. As we have stated on numerous occasions we are often unable to resolve factual disputes, therefore, absent a clear statement about the matters discussed in closed session we are unable to find that the City was in violation of the statute.
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 WattsJohn S. Kelley, Jr.