Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Butler County Fiscal Court violated the Kentucky Open Meetings Act in failing to comply with all of the notice requirements codified at KRS 61.815(1)(a), that "shall be met as a condition for conducting a closed session" authorized by KRS 61.810, before going into closed session during its July 11, 2011, regular meeting to discuss a "personnel matter." 1 By letter directed to Butler County Judge/Executive David Fields on August 2, 2011, Robert D. Cron alleged that in allowing Magistrate Johnny Tuck to "add a personnel issue he wanted to discuss with the Court in" 2 closed session without giving "specific and complete notification" of the business to be discussed under KRS 61.810(1)(f) (which of the particular actions was being contemplated), the Fiscal Court violated the Open Meetings Act. Based upon the unrefuted evidence presented, this office finds that, in only referencing KRS 61.810(1)(f) (if that), the Fiscal Court failed to comply with KRS 61.815(1)(a) before going into the closed session held on July 11. 3 As the Attorney General has consistently recognized, 4 consistent with
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997), "a public agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) 'by announcing, in open session, the general nature of the business to be discussed in closed session (appointment, discipline, or dismissal of an individual employee), the specific reason for the closed session (which of these particular actions is being contemplated), and which of the exceptions codified at KRS 61.810 is being invoked to authorize the closed session. (KRS 61.810(1)(f)).'" 09-OMD-171, p. 6; 99-OMD-49; 06-OMD-262; 10-OMD-017.
In his August 2 complaint, Mr. Cron alleged that "[w]hen Mr. Tuck asked [the Judge/Executive] if his request could be added, and did not state one of the required reasons, and [the Judge/Executive] then complied without asking for a reason," the Fiscal Court violated the Open Meetings Act (specifically, KRS 61.815(1)(a)). As a means of remedying the alleged violation of the Act, Mr. Cron proposed that Judge/Executive Fields "[o]bey the Open Meetings Act" as written and in the manner outlined in the publication issued by this office, entitled "Protecting Your Right to Know," obey the Open Meetings Decisions rendered by the Attorney General, and apologize to Magistrate Tuck and the public during a regularly scheduled meeting of the Fiscal Court. Having received no written response to his complaint, 5 Mr. Cron initiated this appeal by letter dated August 29, 2011.
Upon receiving notification of Mr. Cron's appeal from this office, Mr. Deye supplemented his response on behalf of the Fiscal Court, initially advising that "[m]ost recently it has been the practice of the [C]ourt to 'clarify' the agenda prior to the regular meetings." At the outset, Mr. Deye explained, "the Judge asks the magistrates, other county officials, and the public at large if there are items that anyone wants added to the agenda. " 6 His personal recollection of the July 11 meeting "is that during that process, at the beginning of the meeting," Magistrate Tuck requested to put "a personnel matter on the agenda. " Mr. Deye believes that he "also requested that the personnel item be taken up in closed session. " Enclosed with his September 7, 2011, response was a copy of the agenda for the July 11 meeting.
The "historical practice" of the Fiscal Court relative to closed sessions, according to Mr. Deye, "would be that the executive secretary for the [Judge/Executive] would make an announcement of the particular provision of the Open Meetings Act which authorized the [C]ourt to go into closed session. " Mr. Deye is "very comfortable that the secretary at least cited the appropriate statute and section for the closed session. " Having summarized the events and correspondence which followed the meeting but preceded Mr. Cron's August 2 complaint, Mr. Deye advised that "[a]fter spending a reasonable time making a review of the matter," that he "wasn't prepared to conclude that the announcement" made prior to the July 11 closed session was insufficient. "It seems," in his view, "that the only issue left in the appeal is for the Attorney General to establish any wrongdoing." Mr. Deye asked, in closing, that if the Attorney General "has prepared or established any type of 'magic language' to be used by a public agency when going into closed session, " that said language be provided or, if none exists, that suggested language be created. Existing legal authority conclusively resolves the question presented here. Based upon the unambiguous language of KRS 61.815(1), as consistently applied in a line of decisions by this office, which are consistent with governing case law, this office finds that the Fiscal Court violated the Open Meetings Act in failing to comply with all of the notice requirements codified at KRS 61.815(1)(a) before going into closed session.
Our starting point in analyzing the issue presented is the fundamental proposition codified at KRS 61.800, which provides that "[t]he 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." Recognizing that extraordinary circumstances occur which might justify a public agency in conducting 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). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1), which, in relevant part, reads:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(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, 955 S.W.2d 921, 923 (Ky. 1997), 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 by the Attorney General over the years relative to compliance with KRS 61.815(1) are consistent with Floyd County Board of Education, above, in which the Kentucky Supreme Court held that the Board failed to give proper notice in open session of the matters to be discussed in a closed session. Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the Court reasoned:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. In this case, the minutes of the Board do not reflect any mention of the "proposed or pending litigation" exception to the Open Meetings Act. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. See Fiscal Court v. Courier Journal and Louisville Times Co., Ky., 554 S.W.2d 72 (1977); Jefferson County Board of Education, supra, at 28. We agree with the language written by then Court of Appeals Judge Johnstone and concurred in by the panel composed of Judges Schroder and Wilhoit 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. Unfortunately, we believe that is precisely how they were used in this case."
Discussions between Board members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct.
Floyd County Board of Education at 924 (emphasis added).
Of particular significance, this office has consistently observed 7 that "the Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed." 00-OMD-64, p. 6. Referring to language employed by the Supreme Court in Floyd County Board of Education, above, this office concluded that "[i]n view of the disparate nature of the [thirteen] exceptions, there can be no bright line test for determining if specific and complete notification has been given . However , 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." 03-OMD-221, p. 4 (some emphasis added); 00-OMD-47; 01-OMD-181; 02-OMD-200. Although this office has also 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." 00-ORD-47, p. 6; 03-OMD-221. "A generic reference to 'personnel matters,' [such as that admittedly made by the Fiscal Court here] standing alone, simply does not constitute a 'specific and complete notification. '" 11-OMD-114, p. 6.
The parties do not disagree regarding the facts which precipitated this appeal; rather, the dispute stems from their differing interpretations of KRS 61.815(1)(a) . The statutory language is unambiguous and our longstanding position regarding application of that language remains unchanged. A review of the statutory language, as well as the foregoing authorities, in short, validates Mr. Cron's position relative to application of this mandatory provision. The Fiscal Court acknowledges that Magistrate Tuck asked to "put a personnel matter on the agenda" to be discussed in closed session. It "at least cited the appropriate statute and section" which authorized the closed session, but apparently did nothing more. "[A] notification which does not include a statement of the specific exception 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." 03-OMD-221, p. 4 (original emphasis); 00-OMD-47; 00-OMD-64; 01-OMD-181; 02-OMD-200; 10-OMD-017; 10-OMD-100; 11-OMD-048.
As the Attorney General has recognized, "[t]he 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. " Id. This office remains of the view that, when read together, said requirements "import a legislative resolve to enhance the public's right to monitor public official conduct in a public meeting." Id. Because the instant appeal presents no reason to depart from this well-established line of authority, the Attorney General concludes that in failing to strictly comply with all of the requirements of KRS 61.815(1)(a) prior to conducting its July 11 closed session, the Fiscal Court "acted in contravention of Floyd County Board of Education v. Ratliff , above, the fundamental policy of the Open Meetings Act codified at KRS 61.800, and prior decisions of this office." 10-OMD-100, p. 6; 11-OMD-114.
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:
Robert D. CronDavid FieldsRichard J. Deye
Footnotes
Footnotes
1 The complaint which culminated in this appeal did not allege that KRS 61.810(1)(f) was inapplicable or that "general personnel matters" beyond the scope of KRS 61.810(1)(f) were improperly discussed in the closed session; however, inasmuch as the Fiscal Court failed to comply with KRS 61.875(1)(a), it necessarily violated KRS 61.815(1)(d) in discussing matters that were not "publicly announced prior to convening the closed session. " The agenda item "Appointment of Butler County Library Board Trustees -- Tammy Alford or Melissa Iler" presumably appeared on the agenda initially, falls within the scope of KRS 61.810(1)(f), and is not at issue.
2 Although KRS 61.820 does not require public agencies to prepare agendas for regular meetings, in contrast to KRS 61.823, which governs special meetings, and this office has therefore recognized that "public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings" in terms of non-mandatory agendas, 01-OMD-175, p. 6, that question is entirely separate from the question of whether public agencies must comply with KRS 61.815(1)(a) before going into closed session as those requirements apply to both special and regular meetings.
3 A copy of the minutes from the July 11 meeting was not provided.
4 Inasmuch as correspondence between the parties, which is part of the record on appeal but was exchanged prior to Mr. Cron's August 2 complaint, suggests there may be confusion regarding the legal effect of decisions issued under the Open (Records and/or) Meetings Act, this office directs the parties to KRS 61.846(4), pursuant to which, if the aggrieved party does not appeal the Attorney General's Open Meetings Decision, "it shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or where the alleged violation occurred." The counterpart for the Open Records Act can be found at KRS 61.880(5)(b). Accordingly, on a number of past occasions where an Open Records (or Meetings) Decision issued by this office was on appeal, this office has noted:
[Our decision represents controlling precedent] in this forum until such time as that [decision] is repudiated by the Kentucky Court of Appeals or the Kentucky Supreme Court in a published opinion. To hold otherwise would result in conflicting open records decisions issuing from this office the outcome of which would be dependent upon the circuit in which a similar dispute arose or might arise, and, within the same circuit, where co-equal divisions of the court reach conflicting conclusions. To hold thus promotes certainty in the application of established legal principle . . . . [A]ny . . . public agency . . . is entitled to appeal the Attorney General's open records decision in the appropriate circuit court per KRS 61.880(5)(a) [or Open Meetings Decision per KRS 61.846(4)).
06-ORD-230, p. 7, 8; 09-OMD-115, p. 4. See 07-ORD-132, p. 7 ("Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected in the [referenced] line of decisions . . ."); 10-ORD-113.
5 Mr. Cron discussed his concerns with Butler County Attorney Richard J. Deye following the Fiscal Court's July 11 meeting. Mr. Deye subsequently issued a letter to Judge/Executive Fields on July 19, 2011 (copied to Mr. Cron and the magistrates), documenting the substance of that conversation and offering his interpretation of the publication(s) issued by this office as well as the applicable case law, ultimately indicating that he is "not prepared to concede that the failure to use the 'magic language' as referenced in the handout is contrary to law." Mr. Deye attached a copy of a document entitled "Suggested Recitation for Going Into Closed Session, " which dealt with KRS 61.810(1)(b), (c), (f), and (g), that he characterized as "guidelines" which "represent my best effort to resolve this matter." Mr. Cron responded in a letter dated July 21, 2011, disputing Mr. Deye's assertion that "opinions" of the Attorney General "do not usually carry the force of law" and his characterization of decisions by this office as being "another attorney stating an opinion on what the law is."
Inasmuch as the referenced correspondence preceded Mr. Cron's August 2 complaint, it does not constitute a response to it; accordingly, it appears that the Fiscal Court/Judge/Executive did not issue a written response to Mr. Cron's actual written complaint. This inaction violated KRS 61.846(1). Because Mr. Cron does not specifically challenge this omission, and the parties are clearly familiar with relevant provisions of the Open Meetings Act, even if they differ as to how some must be applied, this office will not unnecessarily lengthen the instant decision with a recitation of the well-established law relative to KRS 61.846(1), particularly in light of the unusual sequence of the relevant events. Because the role of this office in adjudicating a dispute under the Open Meetings Act is limited to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," the Attorney General declines to comment on the remedies proposed or implemented. 08-OMD-164, p. 2.
6 Mr. Deye correctly noted that said practice was the subject of a recent appeal by Mr. Cron, which resulted in 11-OMD-020, issued on February 4, 2011.
7 In 00-OMD-114, this office declined to view a violation of the Open Meetings Act as "technical." At page 3 of that decision, the Attorney General reasoned that "[t]he Act itself does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely 'technical.'"