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 Winchester-Clark County Parks and Recreation Board violated the Kentucky Open Meetings Act in holding a closed session during its September 12, 2011, meeting, after the Winchester Fraternal Order of Police made a presentation requesting a waiver of the current Lykins Park "rules" to permit consumption of alcohol on the property and to permit "alcohol sales at Lykins Park during a private festival wherein the park was being leased to a limited liability company for the week," for the purpose of discussing "necessary preparations, strategies and/or tactics to address potential litigation and reduce potential liability for Winchester/Clark Count[y] Parks and Recreation" in the event FOP was granted such a waiver. Because several members of the community had expressly stated their intention to file a lawsuit or seek an injunction if a waiver was granted to the FOP, directly to the Winchester-Clark County Parks and Recreation Department, and the possibility of litigation was therefore not remote, the Board's discussion was authorized under KRS 61.810(1)(c), which "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 (emphasis added).
By letter directed to Board Chairperson Charlie Eury on September 15, 2011, Katie Perkowski, reporter for The Winchester Sun , submitted a written complaint alleging that a violation of the Open Meetings Act occurred when Board members "discussed in private whether to grant the Winchester [FOP] a waiver from its ordinance against alcohol sales in public parks for the John Michael Montgomery Country Festival," during its meeting on September 12, relying on KRS 61.810(1)(c) . Ms. Perkowski cited
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923-924 (Ky. 1997), for the proposition that a public agency "violates the Open Meetings Law if it goes into closed session when the possibility of litigation is 'remote. '" Because there was "no specific proposed litigation or pending litigation filed against the [B]oard or on behalf of the [B]oard" as of that date, "regarding that waiver to the FOP," Ms. Perkowski asserted, "the possibility of litigation was remote. " To remedy this alleged violation, Ms. Perkowski proposed that the Board "ensure that it will not hold improper closed sessions under the stated exemption again." 1
In a timely written response, Chairperson Eury assured The Winchester Sun "that it has never held 'improper closed sessions under the stated exemption' " but has complied with, and will continue to comply with requirements of the Open Meetings Act. He believed "this matter may have been addressed differently had a representative of [ The Winchester Sun ] been present during the meeting to hear the presentations and discussions of the Board prior to the motion." Chairperson Eury noted that in Floyd County Board of Education v. Ratliff the Court also held "that 'anything that would include the attorney-client relationship[s] would also fall within th[is] exception. The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened.'" This is consistent with prior decisions by the Attorney General, he continued, "where it was determined that a 'public agency can at that time discuss in closed session such matter[s] as strategy, tactics, possible settlement and other matter[s] pertaining to that case or that anticipated or probable case."
By letter dated September 21, 2011, but received on September 28, Executive Editor John A. Nelson initiated this appeal on behalf of The Winchester Sun , asserting that the Board went into closed session under authority of KRS 61.810(1)(c) to discuss "granting a waiver of its rule that no alcoholic beverages be allowed on park property" and the waiver "was eventually granted in open session. " Mr. Nelson acknowledged that nobody representing The Winchester Sun was "present at the time the motion was made to enter executive session, but arrived while it was ongoing." He further noted that "[t]ime had been previously allotted for an executive session on the [B]oard's agenda. " 2
According to Mr. Nelson, "[i]n an interview a couple of days after the meeting, County Attorney Brian Thomas told The Sun he had been consulted beforehand and that 'there had been discussions from people that basically said, 'If you have alcohol you would be in violation of your ordinance and could be sued.'" 3 Having consulted with its legal counsel, The Winchester Sun "concluded that such concerns represent a remote potential for litigation and therefore the exemption would not apply." There was "no need-nor any statutory support," The Sun contended, for the Board to discuss in private "the remote potential for a lawsuit based on [the] possibility that it might choose to ignore its own ordinance and allow beer sales at the event without a waiver." Nor was there authority, in his view, for the Board "to discuss in private any potential liability, however remote, that might result from activities at the event should a waiver be granted." The Winchester Sun emphasized that "[t]here still has been no explanation from the [B]oard regarding what kind of specific threat it felt it faced that demanded a closed session, other than to suggest that the earlier discussion in open session -- the FOP's description of how it would regulate the sales -- would have made that clear." Mr. Nelson questioned why "a clear explanation" has not been offered.
Upon receiving notification of The Winchester Sun's appeal from this office, County Attorney Brian N. Thomas responded on behalf of the Board, initially confirming that during the Board's meeting on September 12 the FOP gave a presentation "requesting a waiver of the current park rules to allow alcohol to be consumed on the property and to allow alcohol sales at Lykins Park during a private festival wherein the park was being leased to a limited liability company for the week." Following that presentation and the resulting discussion, Mr. Thomas explained, a motion was made 4 under KRS 61.810(1)(c) "to discuss proposed or pending litigation related to allowing the [sale] of alcoholic beverages at Lykins Park." Mr. Thomas reiterated that a representative of The Winchester Sun "first arrived at the meeting after the Board had adjourned into closed session. " 5
In addressing the substance of this appeal, Mr. Thomas quoted the language of KRS 61.810(1)(c), explaining that before the September 12 meeting, "several individuals in the community had stated to others and public officials in other community forums that if a waiver was granted to the FOP, then the individuals would file a lawsuit or seek an injunction. This information was communicated directly to the Winchester-Clark County Parks and Recreation Department." Having quoted relevant language from Floyd County Board of Education v. Ratliff , above, Mr. Thomas further argued:
Previous Open Meetings Decisions provide some guidance on when a threat of litigation is sufficiently cognizable as to no longer be "remote. " Previous decisions have held "that where there has been 'direct suggestion of litigation' conditioned upon the occurrence or nonoccurrence of a special event, the possibility of litigation was sufficiently great to warrant the public agency's invocation of [KRS 61.810(1)(c)]." 93-OMD-119, p. 3 citing OAG 84-240. In the present case, the Board had received indications that it would face legal action based on the occurrence or nonoccurrence of a waiver being granted to the FOP. The Board held an open public meeting and discussion regarding the proposed waiver and then adjourned to closed session to discuss preparation, strategy and/or tactics for addressing the potential litigations should a waiver be granted.
Citing 98-OMD-147 (invocation of KRS 61.810(1)(c) is proper so long as there have been "direct suggestions of litigation conditioned on the occurrence or nonoccurrence of a specific event"), Mr. Thomas correctly observed that "Mr. Nelson's implicit position that a lawsuit must be pending before KRS 61.810(1)(c) may be invoked has been expressly rejected." Here a "direct suggestion did exist," Mr. Thomas emphasized, "as litigation had been threatened by members of the community." The Board noted "that the majority of the meeting, discussion and presentation of the FOP, while not attended by a representative of The Winchester Sun , were open to the public." It adjourned to closed session "only for a discussion of necessary preparations, strategies and/or tactics to address potential litigation and reduce potential liability for the [Department/Board] should a waiver be granted. The threat of litigation was not remote but had been threatened by members of the community."
Based upon this explanation of the events which preceded the September 12 closed session and the subject discussion, and in the absence of any objective proof to the contrary or basis to question the Board's veracity, this office finds the Board's reliance on KRS 61.810(1)(c) justified; however, to the extent contrary assertions made by The Winchester Sun regarding the specificity and immediacy of the litigation threat (the Board "could be sued") and/or the nature of the discussion ("granting a waiver of its rule that no alcoholic beverages be allowed on park property" only as opposed to related threat of litigation) are, in fact, accurate, the Board's discussion exceeded the scope of that exception. A certain amount of assumption is required with regard to its factual account given that a representative thereof was not present for the actual presentation by the FOP and the discussion which preceded the closed session. This office is "not empowered to engage in independent fact finding or to consider information that does not appear in the record on appeal, and the conflicting evidence in that record precludes a finding" that the Board violated the Act. 05-OMD-114, p. 5.
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). 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, 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). As properly noted in Jefferson County Board of Education, supra, the matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of "everything tangential to the topic."
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." (Emphasis added.) See 01-OMD-41, p. 6 (citation omitted)
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 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); that a 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" (04-OMD-039); that "in light of the highly contentious nature of the proposed sidewalk project and the highly suggestive nature of the language . . . employed in [an e-mail to the Mayor]," the Windy Hills City Council had a "reasonable apprehension that litigation against it was threatened" (04-OMD-146); that the Bowling Green-Warren County Regional Airport Board established that "possibility of litigation is sufficiently great to warrant invocation of KRS 61.810(1)(c)" as "it appears that the pilots will initiate action against the Airport Board to challenge the legality of the new refueling policy if a compromise is not soon reached, and that the Airport Board will initiate action against its insurer if a settlement is not soon reached"; that the Scott County Board of Education "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 [Office of Civil Rights] complaint" (09-OMD-208); and that the Stamping Ground City Commission properly invoked KRS 61.810(1)(c) to discuss with legal counsel "the City's options regarding its claim against [named] property owner, including filing suit to collect the amount claimed, the defenses available to the property owner, and the relative strengths and weaknesses of the City's claim" (11-OMD-011). Compare 93-OMD-110 (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); 95-OMD-57 (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"); 01-OMD-152 (Martin County Fiscal Court's closed session discussion on the subject of retaining legal counsel was not authorized by KRS 61.810(1)(c)); 03-OMD-178 (Spencer County Board of Education's closed session discussion of hearing procedures in conjunction with KRS 161.765 hearing was improper).
Based on this line of decisions, the following guidelines have been established:
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.
93-OMD-119, p. 3, 4 (emphasis added). Given the statements provided in support of the Board's reliance on KRS 61.810(1)(c) as the basis for the September 12 closed session, this office believes that, while this appeal may present a closer question than some of those referenced above, the possibility of litigation could reasonably have been perceived as more than "remote. "
Our decision is premised on the assumption that "several individuals in the community had stated to others and public officials in other community forums that if a waiver was granted to the FOP, then the individuals would file a lawsuit or seek an injunction ," that said "information was communicated directly to the Winchester-Clark County Parks and Recreation Department," and that a closed session was entered into " only for a discussion of necessary preparations, strategies and/or tactics to address potential litigation and reduce potential liability for the [Department/Board]" in the event a waiver was granted. (Emphasis added.) Under the "totality of the circumstances," the Board could have "reasonably believed that litigation was threatened." 04-OMD-146, p. 4. Although the Board had not yet "become a party plaintiff or defendant in a lawsuit, it is apparent that the storm of controversy surrounding the [waiver] issue made litigation more than a remote possibility." Id., p. 6. This, coupled with the statements by members of the community "created a reasonable apprehension in the minds of the [Board] members that litigation was threatened." Id. Contrary to The Winchester Sun's belief, "a lawsuit need not be [proposed or] pending in the courts before an agency can properly invoke KRS 61.810(1)(c) to go into closed session to discuss strategy and tactics so long as there have been 'direct suggestions of litigation conditioned on the occurrence or nonoccurrence of a specific event.'" 98-OMD-147, p. 5, quoting OAG 91-141, p. 3. That is exactly what happened in this case when local citizens explicitly declared their intention to "file a lawsuit or seek an injunction" if the Board granted a waiver to the FOP. 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 . . . [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 form public scrutiny." 04-OMD-039, p. 11. To the extent discussion occurred in the closed session that was tangential to "heading off threatened litigation" or strategy, tactics, etc. pertaining to the anticipated case, if any, that discussion was improper. 04-OMD-146, p. 8.
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:
John A. NelsonBrian N. ThomasCharles H. Eury
Footnotes
Footnotes
1 Although Ms. Perkowski also requested "a copy of any minutes, any notes and /or any documents created as a result of that closed session, " Chairperson Eury advised that "there were no written records of any type created while in closed session. " The Board ultimately reiterated as much on appeal. This office has long recognized that a public agency cannot produce nonexistent records for inspection or copying. See 07-ORD-188. Further, the "longstanding position of this office" is that even "if a record (minutes) of a closed session are recorded, they need not be disclosed insofar as to do so would defeat the purpose for which the closed session was conducted." 02-ORD-86, p. 3; 94-OMD-63, p. 3 ("minutes of a closed session need not be made available"). 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 aside from offering this guidance. 08-OMD-164, p. 2.
2 The Board has not refuted this assertion; however, a copy of the agenda is not of record nor is the fact that a closed session was on the agenda dispositive.
3 No documentation of this interview has been provided with the exception of the September 16, 2011, newspaper article by Ms. Perkowski, which actually indicates that Mr. Thomas "said members of the [B]oard told him some of the information for discussion could potentially put the [B]oard at risk for liability, . . ." This office has recognized that "newspaper articles do not constitute conclusive proof." 09-OMD-135, p. 5, note 5.
4 The Winchester Sun did not allege that any violation of KRS 61.815 occurred nor has a copy of the minutes been provided on appeal, presumably because the Board will not approve the minutes until its next meeting; accordingly, this office presumes that all of the notice requirements codified at KRS 61.815(1)(a) were satisfied.
5 Although the Board further argued that "[a]s a procedural matter Mr. Nelson's appeal appears to be moot as the remedies requested by him have already been offered or are unavailable," which is true as far as it goes, even assuming for the sake of argument that 40 KAR 1:030, Section 6 was applicable in the context of an Open Meetings Appeal, the primary (albeit substantive) issue presented is not moot as the Board has not conceded that any violation was committed.