Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Oldham County Board of Education violated the Kentucky Open Meetings Act in holding a closed session during its August 30, 2010, regular meeting for the purpose of discussing Dick Richards' "Proposal for resolution of gender inequities in the athletics program," which the United States Department of Education's Office of Civil Rights forwarded to the Oldham County School District as part of the Early Complaint Resolution process relative to his Title IX complaint. The discussion consisted of "potential responses to the eight demands" contained in his mediation proposal for settlement of his Title IX complaint with the OCR, as well as legal advice "from the [D]istrict's attorney regarding strategies related to the participation in mediation. " Because the possibility of litigation remained "more than a remote possibility, " 93-OMD-119, p. 4, this discussion was properly held in closed session. The protection of KRS 61.810(1)(c) "is broad enough to extend to closed session briefings by agency counsel on the strengths and weaknesses of a case, actual or threatened . . ." 04-OMD-039, p. 11.
By letter directed to Chairwoman Joyce Fletcher on September 29, 2010, Dick Richards implicitly relied upon KRS 61.815(1)(a) in alleging that the Board failed to "give notification of any and all topics to be discussed in a closed session. " Mr. Richards' "primary complaint" was that the Board's discussion "of the OCR's mediation proposal is not valid as an exempt topic for closed sessions and should have been held in an open meeting." According to Mr. Richards, "[t]here was nothing 'inherent to litigation' about that topic and there is no litigation currently pending or proposed." In other words, Mr. Richards did not believe that the Board's reliance upon KRS 61.810(1)(c) was appropriate. Mr. Richards' "only pertinent communication to anyone on the [B]oard about possible litigation involved either litigation or submitting a complaint to the OCR." (Original emphasis.) He opted to submit a complaint to OCR, "thus taking litigation off the table." Although the "decision made in that meeting about participating in the OCR-led mediation may now be a moot point," Mr. Richards argued, "because the [B]oard held this discussion in secret, the public lost the ability to see the positions taken by its elected officials." To remedy the alleged violation(s), Mr. Richards proposed that "the content of the discussions and the votes taken be made part of the permanent public record" and if "other votes were taken or decisions made on gender-equity topics, those should be rescinded and the discussions should be held again - in an open, public session. "
In a timely written response, Ms. Fletcher advised Mr. Richards that on August 30, "the Board approved a motion to go into closed session to discuss 'litigation' under KRS 61.810(1)(c). Although the motion included the specific statutory reference and a statement of the business to be discussed, upon reflection it lacked the specificity required under interpretations by the Attorney General." Ms. Fletcher noted that her understanding was that he "brought this to the attention of the [D]istrict's attorney when [he] called to arrange an Open Records inspection of the report filed with the U.S. Dept. of Education's [OCR] in response to [his] Title IX Complaint." At that time, Ms. Fletcher observed, he was "advised by the [D]istrict's attorney that [B]oard members would receive a review of the requirements for closed session prior to the next regularly scheduled monthly [B]oard meeting and that in the future the Board would maintain strict compliance with the requirements under KRS 61.815."
With regard to Mr. Richards' primary complaint, Ms. Fletcher advised that the "proposal was a list of demands that you submitted to the [OCR] that, if accepted by the [D]istrict, would resolve the Title IX complaint you filed against one of the [D]istrict's high schools." Ms. Fletcher indicated that the Board disagrees with his position "that 'there is nothing inherent to litigation about' responding to a settlement proposal. " According to Ms. Fletcher, KRS 61.810(1)(c) "expressly provides that the litigation in question may be pending, proposed, or merely threatened." 1 Anything that falls within the attorney-client privilege, Ms. Fletcher continued, is also protected under KRS 61.810(1)(c). Ms. Fletcher explained that the Board adjourned to closed session "to discuss with the [D]istrict's attorney the strategies for responding to your specific settlement demands and preparation for mediation, should it occur." Because "discussions among adversarial parties and the mediator are confidential," Ms. Fletcher observed, "it would not make sense to have discussions with the [D]istrict's attorney in open session detailing the [D]istrict's responses and strategies." Doing so would provide the opposing party "an unfair advantage in the mediation. " In response to Mr. Richards' proposed remedy, Ms. Fletcher advised him that "no votes were taken in closed session. The content of the discussions included potential responses to the eight demands you included in your mediation proposal to settle your Title IX complaint with the [OCR], and advice from the [D]istrict's attorney regarding strategies related to the participation in mediation. " The Board maintains that such discussions are "protected from disclosure by the attorney-client privilege and KRS 61.810(1)(c)." Finally, Ms. Fletcher stated that "no votes were taken or decisions made on any other gender-equity topics during the closed session. "
By letter dated October 6, 2010, Mr. Richards initiated this appeal, explaining that when his attempts to convince the District to correct issues regarding "unfair treatment of girls in athletics" failed, he verbally advised the Superintendent and one Board member that he "had the option of either filing a federal lawsuit or filing a complaint with the federal Department of Education's [OCR]." He opted to file a complaint with the OCR. Now, over a year after he filed the complaint, Mr. Richards explained, "the OCR proposed mediation as a means to work out an agreement, and the [Board] decided to hold a closed session on August 30, 2010, to discuss this mediation. " Mr. Richards contended that closed session was illegal; first, because the Board failed to give proper notification of the topics to be discussed, which it does not deny, 2 and second, in relying upon KRS 61.810(1)(c) as "there was no proposed or pending litigation. " In his view, the "starting proposal," a copy of which is attached to his letter of appeal, is not equivalent to "settlement demands." 3 Mr. Richards emphasized that the mediation "was intended to help resolve a policy disagreement between the [Board] and a citizen. The judicial branch had no involvement in any form or manner. In fact, the OCR has an explicit policy to close any complaint if a lawsuit is filed on that complaint."
Mr. Richards further challenged the Board's claim that KRS 61.810(1)(c) applies if litigation is "'merely threatened,' a claim which is nowhere to be found in the statute." If the attorney-client privilege applies, Mr. Richards continued, it "would only pertain to discussions between the attorney and the client, not discussions among [B]oard members." Finally, Mr. Richards asserted that "clearly a final decision was made in that closed session because the [D]istrict did decide to participate in the mediation, and no discussion of this final decision was held in public session. " If nothing else, he argued, the Board "should be required to reveal how that decision came about." According to Mr. Richards, this whole situation amounts to a policy dispute rather than a legal dispute as before the mediation, the Board "had not yet formulated the detailed policies which would clarify what they believe does or does not constitute equal treatment." The pending mediation, he contended, "forced them to take positions ( i.e., formulate policies) on each issue and they used the closed session to work out what those positions/policies would be." In holding the closed session, Mr. Richards concluded, the Board "conducted the formation of policy in secret and has hidden from the public the official positions of our elected representatives on a critical matter - equality."
Upon receiving notification of Mr. Richards' appeal from this office, Ann Courtney Coorssen, General Counsel, responded on behalf of the Board. 4 Ms. Coorssen provided the following background:
During the course of the investigation, the attorney from OCR handling the case inquired whether the [D]istrict would consider participating in the Early Complaint Resolution (ECR) program, which consists of attempted voluntary resolution between the parties with the OCR attorney acting as a facilitator. I advised the OCR attorney that I would discuss with the Board a resolution proposed by Mr. Richards that would settle this matter from his perspective. On August 4, 2010, I received Mr. Richards' settlement proposal from the OCR. I discussed the proposal with the Board and advised them of their alternatives in closed session at the August 30th [B]oard meeting. The discussion concerned both the [B]oard's legal obligations regarding specific items proposed by Mr. Richards' [sic] and their options for resolving the complaint.
I responded to the OCR on August 31st. On September 15th - two weeks after the August 30th [B]oard meeting - the OCR attorney contacted me to inquire whether the [D]istrict would be willing to participate in an "in-person mediation" which would have to take place before September 30th. After conferring with the Superintendent I advised the OCR attorney that the [D]istrict was willing to participate in the proposed in-person mediation. Consequently, there could not have been a "vote" on in-person mediation at the August 30th [B]oard meeting as claimed by Mr. Richards, because the in-person mediation . . . was not proposed by the OCR attorney handling the dispute until September 15th.
The record is devoid of any objective proof to refute the Board's credible position regarding the allegation that a vote was taken during the closed session; accordingly, the remaining question is whether the discussion was improper.
With regard to Mr. Richards' claim that use of the "litigation exception" was not appropriate, Ms. Coorssen offered the following clarification:
First, Mr. Richards incorrectly characterizes the dispute between the parties as a "policy disagreement." Under KRS 160.290, the Board is vested with the sole authority for making policy - Mr. Richards has no vote in the adoption of policy. Pursuant to this authority the Board has duly adopted Title IX policy that prohibits discrimination based on gender in the provision of educational services, extracurricular activities or athletics. Mr. Richards does not disagree with this policy. Rather, his dispute is with certain alleged actions of the [Board]. During the closed session, the Board was not considering any change to this policy or any other policy. Contrary to Mr. Richards' assertion the Board did not "formulate the detailed policies which would clarify what [the Board] believe[s] does or does not constitute equal treatment." This simply did not happen - there are no new policies or revisions to existing policies as a result of the closed session discussion concerning Mr. Richards' settlement proposal.
Mr. Richards confuses "taking positions" with "formulating policies" in his letter of appeal. He fails to recognize that a Board policy is an official governing document that must be adopted in open session - no valid policy can be adopted in closed session. The Board's "position" on aspects of a settlement proposal is not a policy. Mr. Richards further states incorrectly that "the [Board] has conducted the formation of policy in secret and has hidden from the public the official positions of our elected representatives on a critical matter - equality." Again, "equality" was not discussed during closed session and no policy regarding "equality" was formulated - only the settlement proposal, potential strategies and responses, and legal options were discussed.
As further evidence that neither the dispute nor the closed session involved Board policy, none of the settlement demands submitted to OCR by Mr. Richards involved adopting, modifying, or deleting any policy of the [Board]. As in the past, any future changes in policy will be presented to the Board members for a vote in public session.
Second, Mr. Richards argues that the Board's decision to go into closed session does not fit within the litigation exception of KRS 61.[810(1)(c)] because there was no "proposed or pending litigation. " However, the Attorney General's recent [decision, 10-OMD-166,] stated the applicable standard as follows:
Prior to filing his complaint with the [OCR], Mr. Richards filed a complaint with the Kentucky High School Athletic Association on the same Title IX issues. When this complaint was not resolved to his satisfaction, Mr. Richards filed a complaint with the OCR. He has also publicly stated that "he's not going away" (most recently in public session on October 25th). Under the circumstances it was reasonable to believe that in the event he was dissatisfied with the outcome of the OCR investigation he would file a civil lawsuit (as he has threatened to do in the past). The threat of a civil lawsuit following an unsuccessful voluntary resolution attempt necessitated that the Board discuss its position on the settlement demand forwarded by OCR, legal analysis of the claims made in the complaint, potential redress, and strategies pertaining to future activities conducted as part of the [ECR] process. Although Mr. Richards claims that "litigation was off the table" after filing his OCR complaint, the "OCR Complaint Processing Procedures" clearly states [sic] that the complainant may have the right to file a federal lawsuit regardless of the outcome of the OCR investigation.
Relying upon
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923-24 (Ky. 1997) (this exception applies "to matters commonly inherent to litigation, such as preparation, strategy, or tactics" and the litigation "may be merely threatened" but does not apply where the possibility "is still remote" ), Ms. Coorssen argued that "case law interpreting the litigation exception acknowledges that attorney-client privileged material is included within the exception." Mr. Coorssen also reiterated that she has represented the Board in this matter since it received Mr. Richards' complaint in June 2010 and the discussion at issue was between her, "as the attorney for the Board, and the Board members - not 'among Board members' as suggested by Mr. Richards." 5 Although Mr. Richards "downplays the legal nature of the ECR process," she continued, he "brought two attorneys with him to the mediation. "
Based upon the following, this office finds that under the circumstances presented, the Board was authorized to discuss "the settlement proposal, potential strategies and responses, and legal options" with its legal counsel during a closed session per KRS 61.810(1)(c). To hold otherwise would contravene governing precedent, namely, 09-OMD-208.
Fundamental to analysis of the question presented is the legislative statement of policy 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.
To assist with implementation of this policy, the General Assembly enacted KRS 61.810, pursuant to which "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times." Recognizing that extraordinary circumstances occur which might justify a public agency discussing 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). As previously indicated, resolution of this appeal turns on the language of KRS 61.810(1)(c), which authorizes public agencies to have "[d]iscussions of proposed or pending litigation against or on behalf of the public agency" in closed session. This exception, like the others codified at KRS 61.810(1), "must [be] narrowly construe[d] and appl[ied] . . . so as to avoid improper or unauthorized closed, executive or secret meetings." Floyd County Board of Education, above, at 923.
In Floyd County Board of Education v. Ratliff, as the Board correctly argued on appeal, the Kentucky Supreme Court interpreted KRS 61.810(1)(c) as follows:
[T]he drafters of the legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics. Obviously, anything that would include the attorney-client relationship would also fall within this exception. The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply "any time the public agency has its attorney present" or where the possibility of litigation is still remote. See Jefferson County Board of Education v. The Courier-Journal, Ky. App., 551 S.W.2d 25 (1977).
Floyd County Board of Education at 923, 924 (emphasis added). Numerous decisions by this office which predate Floyd County Board of Education v. Ratliff adopted this view. In OAG 78-227, for example, this office held that KRS 61.810(1)(c) was intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to litigation, threatened with litigation, or anticipates initiating litigation on its own behalf.
Applying these general principles to a series of appeals initiated under KRS 61.846(2), this office held that the Highland Heights City Council properly conducted a closed session to discuss strategy, tactics, and the possible settlement of a condemnation proceeding against the City (92-OMD-1728); that the Board of Trustees of the Louisville Firefighters Pension Fund improperly conducted a closed session to discuss litigation which did not involve the Pension Fund but involved the similarly situated Policemen's Pension Fund (93-OMD-110); that the Lexington-Fayette Urban County Government improperly conducted a closed session to discuss a dispute between the City and state concerning property known as the "Ben Snyder Block" (95-OMD-57); and that Kentucky Employers' Mutual Insurance Authority properly conducted a closed session to discuss whether to appeal a decision by this office, but improperly made the final determination in closed session (97-OMD-96). See also 01-OMD-41 (public agency properly invoked KRS 61.810(1)(c) as it appeared that it will be named as a party in a pending legal action, "and/or w[ould] initiate legal action against the developer, if settlement [was] not reached"); 04-OMD-039 (public agency properly invoked KRS 61.810(1)(c) as this exception "is broad enough to extend to closed session briefings by agency counsel on the strengths and weaknesses of a case, actual or threatened . . . [and the] fact that the actual or threatened litigation relates to an ordinance does not deprive the agency of the right . . . to shield its litigation strategy from public scrutiny").
More recently, this office was asked to decide, in relevant part, whether the Scott County Board of Education violated the Open Meetings Act by conducting "secret negotiations" relative to a complaint filed with the OCR in closed sessions held under authority of KRS 61.810(1)(c) or in secretly authorizing its legal counsel to do so. The Board in that case had entered into negotiations regarding a possible settlement, which ultimately resulted in a binding resolution agreement between the parties. As in the instant appeal, the agency maintained that "discussion of the OCR complaint and the possible resolution of that matter through a settlement agreement was fully appropriate[.]" 09-OMD-208, p. 2. However, the complainant maintained that in the event a settlement agreement could not be successfully negotiated, OCR did not have the power to litigate, according to its Case Resolution and Investigative Manual, which confirmed that OCR could only "'initiate administrative proceedings . . . or . . . refer the case to [the Department of Justice] for judicial proceedings . . . .'" 09-OMD-208, p. 3. Similar to Mr. Richards' position here, in the complainant's view, unless the District itself was proposing litigation, there was consequently no "pending litigation. "
Refuting this claim, the Board explained, in relevant part, that it met with legal counsel in closed session to discuss the (reopened) 6 OCR complaint and was not asked to approve the specific terms of the proposed resolution agreement, "but instead discussed with [legal counsel] and the Superintendent the defense strategy in responding to the OCR complaint, i.e., whether it was advisable to proceed toward early resolution or to defend against the allegations, and the strengths and weaknesses of the School District's position in the event settlement did not occur." Id., p. 4. In sum, the Board's position, as in this case, was that it was "'entitled to hear from its legal counsel regarding the strengths and weaknesses of its position . . . and the tactics and strategies which might be at issue if pre-investigation settlement was not reached,'" and that its closed session therefore did not violate the Open Meetings Act. Id., p. 5. This office concluded that the Board "properly relied on KRS 61.810(1)(c) in conducting a closed session discussion with its attorney of the status and defense of the reopened OCR complaint" during the closed session. Id. The same result follows here.
In our view, "discussion of 'strategy' and 'tactics' [was] broad enough to extend to discussions concerning the advisa[bility of] proceed[ing] toward early resolution or . . . defend[ing] against the allegations" in the complaint. The instant appeal presents no reason to depart from the reasoning or conclusion of 09-OMD-208. Id., p. 6. When viewed in its entirety, the record on appeal validates the Board's position that "it was reasonable to believe that in the event he was dissatisfied with the outcome of the OCR investigation" the possibility that Mr. Richards would file a lawsuit was "more than remote. " The Board was correct in asserting that its "position" relative to a settlement proposal is not the equivalent of a "policy." Accordingly, the Board was entitled to "discuss its position on the settlement demand forwarded by OCR, legal analysis of the claims made in the complaint, potential redress, and strategies pertaining to future activities conducted as a part of the [ECR] process" under authority of KRS 61.810(1)(c). This office finds that "[r]egardless of whether the complaint was intertwined with "any other active or inactive litigation, or whether the Board's decision to seek resolution was the only practicable one," just as in 09-OMD-208, "the Board was entitled to a briefing on the strengths and weaknesses of its position relative to the complaint which, if not negotiated to a successful resolution, might result in administrative proceedings to suspend, terminate, or discontinue federal financial assistance or referral for judicial proceedings." Id.
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.
Dick RichardsJoyce FletcherPaul S. UpchurchAnne Courtney Coorssen
Footnotes
Footnotes
1 While this assertion is not entirely accurate, relevant case law and prior decisions by this office establish that KRS 61.810(1)(c) includes not only proposed or pending litigation, but also threatened litigation, so long as the possibility of litigation is not still remote.
2 On appeal Ms. Coorssen reiterated that the Board Chairman has acknowledged failing to strictly comply with KRS 61.815(1)(a) on August 30 and has "agreed to maintain strict compliance with the requirements of KRS 61.815 in the future." Enclosed with Ms. Coorssen's response are copies of the minutes of the September and October meetings, which demonstrate that it "has complied with both the statute's requirements and the commitment made to Mr. Richards." Given the Board's admission of this error, and the evidence of its commitment to avoid future violations of KRS 61.815, this office will not unnecessarily lengthen this decision with a recitation of the governing legal precedents which both parties have already familiarized themselves with.
3 This argument places form over substance as the subject "Proposal for Resolution," consists of a list of demands that, if met, would presumably resolve the matter from his perspective, and it was offered as part of the ECR process, which essentially consisted of a settlement negotiation at that stage of the proceedings.
4 Ms. Coorssen initially explained that Superintendent Upchurch received notice of a complaint filed by Mr. Richards with OCR against the District concerning one of its high school athletic programs on June 23, 2010. On behalf of the District Ms. Coorssen notified the insurer "and it was decided that outside counsel would not be engaged" given that she was already handling Title IX complaints regarding athletics filed by Mr. Richards at the other two high schools in the District. As a result, Ms. Coorssen has "acted as counsel and provided legal advice to the Board on this matter since receiving the complaint."
5 Although Ms. Coorssen relied, in the alternative, on the confidentiality provisions found in the ECR Agreement entered into by the parties, consideration of this argument is unnecessary given our conclusion that KRS 61.810(1)(c) authorized the discussion.
6 The complaint in this case was not "reopened" ; however, the legal analysis remains the same as the facts in both cases are, in relevant part, nearly identical. Here, as in 09-OMD-208, the proper closed session discussion "focused on already disclosed allegations and specific strategy and tactics relative thereto." Id., p. 6.