Opinion
Opinion By: Jack Conway, Attorney General; Amye 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 Hustonville City Council violated KRS 61.846(1) by failing to respond to Paul Gray's January 11, 2012, open meetings complaint. In addition, we find that the council's belated response to Mr. Gray's complaint confirms his allegation that it failed to comply with the requirements for conducting closed sessions during its 2011 meetings in violation of KRS 61.815(1)(a) . That response does not, however, confirm general noncompliance with KRS 61.835 based on the failure to "promptly record" minutes that contain "an accurate record of votes and actions," but does reveal one occasion on which the meeting minutes were statutorily deficient.
Mr. Gray hand-delivered his January 11 open meetings complaint to Mayor Cecil Maddox, alleging violations of KRS 61.815 and KRS 61.835 and proposing, as a means of remedying these alleged violations, that the council call a special meeting to inform the public what issues were discussed in closed session during 2011 and under what legal authority those closed sessions were conducted. Having received no response to his complaint, he filed an open meetings appeal with this office on January 23, 2012.
By letter dated January 27, 2012, Hustonville City Clerk Rita Clem provided this office with copies of the minutes of the three council meetings conducted in 2011 during which closed sessions were held. She advised:
In July 2011 and November 2011 the executive sessions were called pursuant to KRS 61.810(f) [sic]. 1
In December 2011 the executive session was called pursuant to KRS 61.810(c) [sic] and to confer with city attorney. The reason for the executive session was inadvertently left off the December 2011 minutes.
Ms. Clem stated that the latter issue would "be addressed during the February 2012 council meeting." This response, along with the attached minutes, confirm Mr. Gray's claim that the council violated KRS 61.815(1)(a) in conducting these closed sessions.
KRS 61.815(1)(a) through (d) establish conditions for conducting closed sessions. That statute provides:
(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;
(b) Closed sessions may be held only after a motion is made and carried by majority vote in open, public session.
(c) No final action may be taken at a closed session; and
(d) No matter may be discussed at a closed session other than those publicly announced prior to convening the closed session.
With reference to these provisions, and in particular KRS 61.815(1)(a), the Attorney General has opined:
[T]he Open Meetings Act . . . contemplates more than agency recitation of the language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed. In construing KRS 61.805 to 61.850, the Supreme Court observed:
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1987). With specific reference to KRS 61.815, the Court declared that prior to going into closed session, the public agency "must 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." Id. at 924. In 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), we believe that the notification must include 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 actions.
00-OMD-64, p. 6; see also 02-OMD-166 and 02-OMD-200. KRS 61.815 is thus aimed at promoting the "express purpose" of the Open Meetings Act, namely, "to maximize notice of public meetings and action." Id. ; see also 94-OMD-78 (holding that agencies which are not exempt per se from the requirements of the Open Meetings Act must strictly observe these formalities before going into closed session) ; 95-OMD-92 (holding that KRS 61.815 "clearly require(s) that certain things be done in a regular, open, and public session before the public agency can go into a closed or executive session" ). Neither Ms. Clem's description of the contested meetings, nor the minutes of those meetings, reflect strict compliance with KRS 61.815(1)(a).
Ms. Clem states that the council conducted three closed sessions in 2011, one in July and one in November "pursuant to KRS 61.810(f) [sic]." She indicates that the council conducted a third closed session in December "pursuant to KRS 61.810(c) [sic]," and to confer with the city attorney, but acknowledges that "the reason for the executive session was inadvertently left off the December 2011 minutes. " Neither her statements, nor the minutes of those meetings, indicate that the council identified the general nature of the business to be discussed in, or the reason for, any of these closed sessions as required by KRS 61.815(1)(a). As noted, mere reference to the statute authorizing the closed session, in the public meeting or in the minutes of the meeting, is insufficient to satisfy the statutory requirements. With reference to the July and November closed meetings, it was incumbent on the council to cite KRS 61.815(1)(f) and to state that the discussion would focus on either the appointment, or the discipline, or the dismissal of an individual employee and was being conducted in closed session to protect that individual's reputational interest. With reference to the December 2011 closed session, it was incumbent on the council to cite KRS 61.810(1)(c) and to state that the discussion would focus on proposed or pending litigation against or on behalf of the council, to identify the litigation by name if to do so would not compromise its litigation posture, and to explain that the closed session was being conducted to protect its preparation, strategy, or tactics. The council's failure to do so at each of these meetings constituted separate violations of the Open Meetings Act. 2
So, too, did the council's failure to respond to Mr. Gray's open meetings complaint. KRS 61.846(1) establishes requirements for agency response to an open meetings complaint. That statute provides:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
The council does not deny receipt of Mr. Gray's complaint or offer any explanation for its failure to respond to it, in writing, within three business days. We urge the council to review KRS 61.846(1) to insure strict compliance with the Act in responding to future open meetings complaints.
The record on appeal does not support Mr. Gray's allegation that the minutes of the council's meetings are deficient because they do not identify "every vote that was taken during the meeting" in contravention of KRS 61.835. That statute provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
Our review of the minutes that Ms. Clem attached to her response to Mr. Gray's appeal generally confirms a record, presumably accurate, of votes and actions taken. The minutes identify the council members making and seconding motions and the vote taken. If the vote is unanimous, the minutes indicate "all in favor." In some instances the minutes reflect a roll call vote identifying each member by name and how he or she voted. The proffered minutes confirm general agency compliance with KRS 61.835. 3 See 03-OMD-006 (enclosed).
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:
Paul GrayCecil MaddoxRita Clem
Footnotes
Footnotes
1 The proper statutory citation is KRS 61.810( 1 )(f).
2 Our records reflect that the City of Hustonville has not complied with KRS 65.055 since 2005. That statute imposes a continuing duty on the county judge/executive, or his designee, to distribute information about open records and open meetings that was issued by this office in 2005, and again in 2008 when the Open Meetings Act was amended, to every elected or appointed official or member within sixty days of their election or appointment, to obtain signed proof of receipt from the official or member, and to certify distribution to the Attorney General. Compliance with KRS 65.055 promotes understanding of the requirements of the Open Records and Open Meetings Act and might prevent violations such as those substantiated in this appeal.
3 We note that at the December 2011 meeting, the final vote taken was notunanimous but did not identify who cast the single dissenting vote. The minutes state:
Council member Lane made the motion to have the fire truck giving rides to the children while Santa is at City Hall. With Council member Cooper as second. 5 votes yes, 1 opposed. Motion carried.
To the extent these, or any other minutes, did not identify how each member voted where the vote was not unanimous, they were deficient.