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 Attorney General being sufficiently advised, we find that the Elkhorn City Council violated the Open Meetings Act at its February 8, 2011, meeting by failing to strictly observe the requirements for conducting a closed session in contravention of KRS 61.815(1)(a), by discussing matters in closed session that were not publicly announced in open session in contravention of KRS 61.815(1)(d), by taking final action in closed session in contravention of KRS 61.815(1)(c), and by discussing an unauthorized subject in closed session in contravention of KRS 61.810(1). Although the complainant, Gypsy Cantrell-Ratliff, alleges additional violations in her letter of appeal relating to "a series of discussions that were held outside of the public view as to the appointment of the interim mayor," we restrict our analysis to the allegation of her open meetings complaint. Those allegations not set forth in her complaint are not ripe for review by this office. KRS 61.846(1) and (2); 40 KAR 1:030 Section 1.
In her February 25, 2011, complaint to the "Members of Elkhorn City Council," 1 Ms. Cantrell-Ratliff alleged that the council failed to identify the general nature of the business to be discussed in closed session, discussed matters in closed session that were not publicly announced in open session, and took final action in closed session. The city responded in a timely fashion that the closed session was conducted for the purpose of discussing "proposed or pending litigation involving the city and personnel. " Additionally, the city noted, "discussions or hearings that might lead to the appointment, dismissal, or disciplining of an individual employee or member cannot be disclosed."
Shortly thereafter, Ms. Cantrell-Ratliff initiated this appeal. She provided this office with a copy of the minutes of the February 8 meeting. The minutes reflect that:
Greg Moore made a motion to go into closed session to discuss personnel matters involving Wayne Ramsey against members of the police department. City Attorney Tim Belcher also stated possible litigation against the City (KRA 61.810). [Sic.] Johnny Mack Potter seconded. A roll call vote was taken and the results were as follows:Council Member Acy ThomasyesCouncil Member Lois CantrellyesCouncil Member James Allen-PolleyyesCouncil Member Danny MatneyyesCouncil Member Johnny Mack PotteryesCouncil Member Greg Mooreyes
With a vote of 6-0, Mayor Pro Tem Lois Cantrell declared the council go into closed session.
In supplemental correspondence directed to this office after Ms. Cantrell-Ratliff initiated her appeal, the city renewed its argument that "[t]he minutes of the meeting . . . show that the city council went to closed session based on the need to discuss certain personnel issues and individual employees and to discuss potential litigation against the city," and that those discussions "are clearly covered by KRS 61.810(1)(c) and KRS 61.810(2)(f) [sic.]." Neither the city's original denial of Ms. Cantrell-Ratliff's complaint, nor its supplemental denial, contains an adequate defense of the city's actions before and during the closed session.
Ms. Cantrell-Ratliff's complaint states three violations of KRS 61.815(1). That statute provides:
(1) Except as provided in subsection (2) of this section, 2 the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
The city council failed to strictly comply with KRS 61.815(1)(a). That provision has been construed by the Kentucky Supreme Court to require agencies to "state the specific exception contained in the statute which it relied upon," and give "specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting."
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997). We find that 03-OMD-221, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue. "The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good. " Ratliff at 922. The minutes furnished by Ms. Cantrell-Ratliff demonstrate that before entering closed session the city council referenced the subjects, but did not identify the exceptions relied upon, or the reason for the closed session. This action satisfied neither the spirit nor the letter of the Open Meetings Act and therefore "violated the public good. " We believe that 03-OMD-113, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue. We urge the city council members to carefully review this decision.
Pursuant to KRS 61.846(2) , this office obtained a copy of the minutes of the closed session referenced in the city's supplemental response. Although we cannot disclose the content of those minutes, 3 it is clear that the council took final action in closed session in contravention of KRS 61.815(c), and that the matter discussed, and upon which action was taken, was unauthorized because it was neither publicly announced in open session nor the proper subject for closed session discussion as delineated in KRS 61.810(1)(a) through (m). Suffice it to say that the council properly discussed threatened litigation involving the police department, but that the discussion, and final action relative thereto, that followed, should have been conducted in open session even though the discussion may have caused inconvenience or embarrassment to the council or the employee who was its subject. The topic discussed did not involve appointment, discipline, or dismissal of an employee and therefore did not qualify under KRS 61.810(1)(f) or any other exception to the Open Meetings Act. We believe that 99-OMD-133, a copy of which is attached hereto and incorporated by reference, is dispositive of these issues. Again, we urge the city council to closely review that open meetings decision.
In light of these findings, we hold that the Elkhorn City Council violated the Open Meetings Act before and during its February 8, 2011, closed session. Although not an issue properly presented to our office, we are enclosing a copy of 09-OMD-093, an open meetings decision addressing the impropriety of a series of less than quorum meetings held for the purpose of circumventing the requirements of the Open Meetings Act, in the interest of resolving any doubt the council members may have as to permissible and impermissible conduct.
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.
Distributed to:Gypsy Cantrell-RatliffTimothy D. BelcherMayor Johnny M. Potter
Footnotes
Footnotes
1 The city objects to the submission of the complaint to the council members, indicating that the complaint "should be addressed to the mayor." Given the apparent turmoil which has surrounded the mayor's office, including the ouster of Mayor Taylor and the contested appointment of Johnny Mack Potter, we do not believe that the misdirection of the complaint constituted a fatal flaw.
2 See 03-OMD-178 as to the meaning and import of this phrase. Accord, 97-OMD-96.
3 This office has long recognized that minutes need not be taken in a closed session, and, if taken, need not be disclosed to the public. OAG 87-16; 94-OMD-110; 09-OMD-172.