Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Hazel City Council violated the Kentucky Open Meetings Act by going into closed session "for the purpose of discussing legal issues according to KRS 61.810" at its February 7, 2011, regular meeting, and in voting to reject a settlement offer in relation to Ray Gough v. City of Hazel, Calloway County Circuit Court, Case No. 07-CI-00542, during that closed session. This office finds, in accordance with Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997) as well as prior decisions, including 11-ORD-011, that in failing to provide notice of the general nature of the business to be discussed (proposed or pending litigation) , the reason for the closed session (nature of the litigation or indication that disclosure of the identity of the party or parties to litigation would somehow compromise the agency's position), and the specific provision of KRS 61.810 authorizing the session (KRS 61.810(1) (c) here), the City Council violated KRS 61.815(1)(a). Although KRS 61.810(1)(c), upon which the City Council implicitly relied here, permits a public agency "to maintain the confidentiality of its litigation strategy when it is a party to litigation, is threatened with litigation, or anticipates initiating litigation on its own behalf," 01-OMD-41, p. 6, citing OAG 78-227, and the City Council therefore did not violate the Act in discussing litigation strategy with City Attorney Trevor H. Coleman under this authority, the City Council did violate KRS 61.815(1)(c) by taking final action (voting to reject a settlement offer) during the closed session held on February 7, 2011.
By letter directed to Mayor Kerry Vasseur on April 7, 2011, Councilwoman Vaughn submitted her written complaint regarding the actions of the City Council at its February 7 meeting, specifically alleging that in voting to reject a settlement offer made by Mr. Gough during closed session, the City Council violated the Open Meetings Act (implicitly relying on KRS 61.815(1)(c)). As a means of remedying this alleged violation of the Act, Ms. Vaughn requested "that the action taken as a result of the improperly conducted vote . . . be declared null and void." Ms. Vaughn also requested that the City Council "revote on the settlement offer that was improperly voted on in closed session. " Finally, she requested that Mayor Vasseur apologize for misrepresenting what occurred to citizens of Hazel, noting that during the March 7, 2011, meeting, the City Attorney "stated on the [C]ity's behalf that a vote was not taken."
By undated letter, Mayor Vasseur advised Ms. Vaughn that the City Attorney came to the March 7 meeting "to clarify this misperception. The information in that meeting was for our attorney only." Mayor Vasseur further asserted that "no motion was made nor a second and that as a result no final action was taken. We have maintained for three years a unanimous position in regards to the lawsuit that was filed against the City." By letter dated April 13, 2011, Ms. Vaughn initiated this appeal, including a copy of a complaint very similar to hers from business owners and citizens of Hazel dated February 17, 2011, the Mayor's February 26, 2011 (untimely, see KRS 61.846(1)), denial of that complaint, and the minutes from the February 7 (and the agenda) and March 7, 2011, meetings. Ms. Vaughn also enclosed a copy of a document entitled "Notice of Settlement Offer" directed to "City of Hazel and Council Members" on February 4, 2011, by Mr. Coleman, as well as a copy of Mr. Coleman's letter to Gary Haverstock, attorney for Mr. Gough, advising that the City Council had "met in executive session" to discuss the "settlement proposal" and "voted unanimously to not settle the lawsuit on any grounds whatsoever that require the [C]ity to amend the existing ordinance. "
Upon receiving notification of Ms. Vaughn's appeal from this office, Mr. Coleman responded on behalf of the City Council, initially asserting that the February 7, 2011, closed session "does not fall within the parameters of KRS 61.8[10(1)]." In relevant part, Mr. Coleman explained:
[T]he event in question stemmed from a request by me, as attorney for the City of Hazel, for direction regarding ongoing negotiations in an attempt to settle current and ongoing litigation filed by Ray Gough against the City of Hazel in Calloway County Circuit Court, case number 07-OCR-00542. The litigation pertains to an existing ordinance requiring a business license for those conducting business in the city limits of Hazel, Kentucky. . . . The closed session that was held is exempt from application requiring an [o]pen [m]eeting by virtue of KRS 61.810(1)[(c)]. The information was to be used in moving forward toward a formal proposal to put in front on the City to be voted on at a regular meeting if the negotiations ever reached that point with Mr. Gough and his attorney. The undersigned also notes, for all interested parties, that the litigation in question has not settled, and is moving forward in Calloway County Circuit Court.
It has long been held that proposed or pending litigation may be discussed in executive session without violating the [Open Meetings Act] . Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Co., 554 S.W.2d 72 (Ky. 1977). The undersigned notes that the litigation noted herein has been ongoing for over three years.
. . . I delivered to the council members for the City of Hazel a list of three possible scenarios that I saw for resolving, or moving the litigation in question forward. I requested the council members to review the proposals in an attempt to provide me with guidance on how best to represent the City in litigation. The information that the council members provided to me was for my use along in representing the interests of the [C]ity in the ongoing litigation, and hopefully moving toward an expeditious resolution. It in no way acted to bind the City to anything at all. All of the council members, including [Ms.] Vaughn, thought it best to continue with the litigation, and require Mr. Gough to comply with the existing ordinance and law of the City. . . .
. . . [T]he information obtained for me in closed session was intended solely for my use in defending the City of Hazel in the litigation referred to herein. It was not to bind the City in any fashion. It would be virtually impossible for an attorney to represent his or her client if the discussion regarding existing litigation were required to be discussed in an open meeting where the other party could be present, or at the very least have an agent present.
The relevant facts are not in dispute; rather, the parties disagree regarding the legal implications thereof. When viewed in light of the well-established law regarding application of KRS 61.815(1), the record on appeal establishes that the City Council violated KRS 61.815(1)(a) by failing to give specific and complete notification of the business to be discussed in the closed session at issue, and violated KRS 61.815(1)(c) by taking final action during that closed session. Existing law does not support any other conclusion.
Our analysis begins with a review of the fundamental proposition codified at KRS 61.800 , declaring that "the basic policy of [the Open Meetings Act] 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 . . . shall be strictly construed." To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1). Resolution of the questions presented turns on subsections (a), (c), and (d), pursuant to which:
(a) 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;
. . .
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
(Emphasis added.) In construing KRS 61.815, Kentucky's highest courts have recognized that "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, above, at 923, citing E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 1990). Consequently, "the courts of the Commonwealth [and this office] must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id.
Decisions issued over the years by this office regarding compliance with KRS 61.815(1) have, of course, been consistent with Floyd County Board of Education v. Ratliff, above, at 924 (holding that "specific and complete notification" must be provided in the open meeting of "any and all topics which are to be discussed during the closed meeting"). In sum, this office has consistently recognized that "a notification which does not include a statement of the specific exception relied upon to conduct a closed session [KRS 61.810(1)(c) here], a description of the general nature of the business to be discussed in [proposed or pending litigation] , and the reason(s) for, [nature of the litigation or indication that disclosure of the identity of the party or parties to litigation would somehow compromise the agency's position] the closed session is inadequate." 03-OMD-221, p. 4. The analysis contained in 11-OMD-011, a copy of which is attached hereto and incorporated by reference, is controlling with regard to application of KRS 61.815(1), and subsection (a) in particular. A lengthy analysis of the authorities which are summarized therein is therefore unnecessary.
As previously indicated, Ms. Vaughn provided this office with a copy of the minutes from the City Council's February 7, 2011, regular meeting, a review of which confirms that a motion was made by Michelle Sharp, with a second by JoyceLyn Hardin, "that council enter closed session for the purpose of discussing legal issues according to KRS 61.810. Motion carried." While this motion complied with KRS 61.815(b), 1 it was not adequate under KRS 61.815(1)(a). See 11-OMD-011 (motion vaguely indicating that agency was going into closed session "'for proposed litigation purposes discussion'" was insufficient under KRS 61.815(1)(a)). Neither a reference to "litigation," standing alone, nor "litigation" accompanied by a reference to KRS 61.810(1)(c), is adequate to satisfy the standard of KRS 61.815(1)(a). 11-OMD-011, p. 7, citing 03-OMD-221, p. 4. It logically follows that a reference to "legal issues according to KRS 61.810" does not suffice. In failing to achieve strict compliance with KRS 61.815(1)(a) prior to conducting its February 7, 2011, closed session, the City Council violated the Open Meetings Act; 2 however, the City Council's implicit reliance on KRS 61.810(1)(c), which applies to "matters commonly inherent to litigation, such as preparation, strategy or tactics," was entirely proper. Floyd County Board of Education v. Ratliff, above, at 924. On this issue, the analysis found at pgs. 8-10 of 11-OMD-011, above, is controlling. See also 10-OMD-217. Because Ms. Vaughn did not allege that discussion of what essentially amounted to legal preparation and strategy was inappropriate, nor would that argument prevail on these facts, additional discussion of KRS 61.810(1)(c) is unwarranted.
The remaining question is whether the City Council violated KRS 61.815(1)(c) in voting to reject a settlement offer during its February 7, 2011, closed session. KRS 61.815(1)(c) expressly provides that "[n]o final action may be taken at a closed session. " The plain language of this provision requires no interpretation. See 94-OMD-110. "A statute should be construed, if possible, so as to effectuate the plain meaning and unambiguous intent expressed in the law." Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth of Kentucky, Transportation Cabinet, 983 S.W.2d 488, 492 (Ky. 1998). When the words are clear, "there is no room for construction and the statute must be accepted as it is written." Griffin v. City of Bowling Green, 458 S.W.2d 456, 457 (Ky. 1970).
A review of the minutes from the February 7, 2011, meeting of the City Council reveals that no vote was taken by the agency upon its return to open session following the subject discussion. Michelle Sharp made a motion, with a second by JoyceLyn Hardin, the motion carried, and the City Council adjourned the meeting. However, the Notice of Settlement Offer, which Mr. Coleman circulated on February 4, 2011, advised that he "need[ed] to know the City's final position on the matter." Thus, he needed "a majority vote" regarding the matter and explained that if the agency reached a "stalemate" on the options described, the members needed to "revote" until a majority vote was reached. Each Councilperson was asked to sign, date, and then select Option I (accept settlement offer) , Option II, or Option III (both counterproposals) at the conclusion of the document. Perhaps more telling is the content of Mr. Coleman's February 8, 2011, letter to Mr. Gough's legal counsel, advising that the City Council "voted unanimously to not settle the lawsuit . . ." Regardless of how the actions have been otherwise characterized in the agency's initial response to Ms. Vaughn's complaint and its response to her appeal, when viewed in its entirety the record on appeal substantiates her position that final action was improperly taken by the agency when it voted to reject Mr. Gough's settlement offer during the February 7 closed session. This action violated KRS 61.815(1)(c).
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:
Megan VaughnKerry VasseurTrevor H. Coleman
Footnotes
Footnotes
1 KRS 61.810(1)(b) provides:
Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session [.]
2 By extension, the City Council violated KRS 61.815(1)(d) in discussing matters "other than those publicly announced. . . ."