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 Kentucky State University Board of Regents 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 under KRS 61.810, when the Finance and Administration Committee and the Audit Committee 1 jointly held a closed session during the Board's January 27, 2012, meeting for the purpose of discussing an external audit. Prior decisions, including 01-OMD-181, a copy of which is attached hereto and incorporated by reference with regard to application of KRS 61.815(2), refute the Board's position that compliance with KRS 61.815(1)(a) was voluntary because KRS 61.815(2) exempts it from compliance with said requirements. The undisputed facts presented also establish that the Committee violated KRS 61.815(1)(b) in failing to make a formal motion "carried by a majority vote in open, public session" prior to entering the closed session, violated KRS 61.815(1)(a) in failing to comply with all of the notice requirements codified therein, and therefore violated KRS 61.815(1)(d) in discussing matters not publicly announced prior to entering the closed session. To hold otherwise would contravene
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997), and prior decisions of this office consistent therewith. The Board's invocation of KRS 61.810(1)(m), which is facially inapplicable, 2 after the closed session, did not constitute "specific and complete notification" per KRS 61.815(1)(a) as construed in Floyd County Board of Education , above.
By letter directed to Regent Charles Whitehead in his capacity as presiding officer, State Journal reporter Katheran Wasson submitted a written complaint describing the alleged violations, in relevant part, as follows:
. At a joint meeting of the Audit and Finance and Administration [C]ommittees on Jan. 27, 2012, you -- presiding officer of the meeting as chairman -- requested to enter closed session to discuss the 2011 external audit.
. First, I believe you violated KRS 61.815(1)(a), [quoted statutory language omitted] . . . You did state the general nature of what you wanted to discuss in closed session, but you did not cite the specific provision that allowed for the closed session.
. "I'd like to take this committee into closed session so that, so that, so that -- I usually do this, just to hear from the auditors, just so that they can say anything that they might want to say. Can we do that?" you said, according to the audio recording I made of the meeting. . . . One member looked at Lori Davis, the university's general counsel, for guidance. Ms. Davis said it would be [okay] to meet in closed session, and she asked if [you would] like the regents who were present in the audience to attend the closed session too. You said yes, and the rests of the audience left the room. . . . Immediately afterward, I asked Ms. Davis which specific provision of the Open Meetings Act allowed for the closed session. She asked me to go out into the hallway with her while she found the appropriate provision. Several minutes later, she told me she had several exemptions in mind, but wanted to confer with Board of Regents Chairwoman Laura Douglas before announcing it and adding it to the meeting minutes. 3
. Later that afternoon, during the [B]oard's regular meeting, Ms. Douglas cited KRS 61.810(1)(m) and KRS 61.878(1)(j), an exemption to the Kentucky Open Records Act, as reasons for the closed session. . . . This took place about four hours after you called the closed session. State law is clear that this information shall be cited in open session before the closed session begins -- not retroactively.
Ms. Wasson characterized the actions described above as a "violation of the Kentucky Open Meetings Act and contrary to the spirit of openness the [KSU] Board of Regents should adopt as overseers of a public university." Secondly, Ms. Wasson advised Mr. Whitehead that upon playing the audio recording of the meeting 4 she heard no "formal motion to go into closed session, no second, and no vote. Instead, you looked to your fellow committee members for agreement." Citing KRS 61.815(1)(b), Ms. Wasson alleged that the Board violated the Open Meetings Act "by not requesting a formal vote before closing the doors to the public."
To remedy these alleged violations, Ms. Wasson proposed that the Board "acknowledge, in writing, that its members violated the Kentucky Open Meetings Law on Jan. 27, 2012." She also requested that "members of the Finance and Administration and Audit Committees make public any notes, minutes or recordings taken during the closed session on Jan. 27, 2012." If no such records were created, Ms. Wasson requested that Mr. Whitehead "make a public, written statement of what transpired during the closed session and what was discussed in detail." Finally, Ms. Wasson asked that the Board "vow, in writing, to never meet in closed session again without citing a specific statute and taking a formal vote" and that a written statement to this effect "be shared with all members, in case they ever find themselves serving as chairperson of a committee or presiding over a [Board] meeting."
In a timely written response, Board Chairman Laura M. Douglas did not dispute the factual summary contained in The State Journal's written complaint, but noted that Ms. Wasson's letter "fails to note . . . that prior to his request for a closed session, Regent Whitehead facilitated an open session presentation regarding an external audit and led the joint committee in a discussion of the matter." Chaiperson Douglas also "strongly dispute[d]" that Mr. Whitehead failed to comply with the requirements of KRS 61.815(1) . Acknowledging that KRS 61.815(1)(a)-(d) "lays out mandatory prerequisites for closed sessions, " Chairman Douglas asserted "that the prerequisites are inapplicable to the Finance and Administration and Audit Committee closed session held on January 27, 2012, since the basis of the closed session was to discuss an item specifically exempted from the requirements of the Open Meetings Act pursuant to KRS 61.810(1)(m)."
According to Chairperson Douglas, "KRS 61.810(1)(m) provides a specific exception to the Open Meetings Act for those instances when a public agency discusses a public record exempted from disclosure pursuant to the Kentucky Open Records Act (KRS 61.878(1)(j))." 5 The Act, she continued, and KRS 61.815(2) specifically, "allows public agencies an exclusion from the notice and voting provisions outlined in KRS 61.815(1)(a)-(d) when a section of KRS 61.810 is applicable." Because KRS 61.810(1)(m) was the basis relied upon by KSU, Chairperson Douglas concluded, "the Finance and Administration and Audit Committee was not required to follow KRS 61.815(1)." Notwithstanding the applicability of KRS 61.815(2), she further observed, "the KSU Board of Regents voluntarily chose to announce its rationale for conducting a closed session during the Finance and Administration and Audit Committee meeting on the record at its full Board meeting on January 27, 2012. Clearly, it was not required to do so." Thus, Chairperson Douglas advised, "the KSU Board of Regents declines acceptance of the proposed remedies outlined in your January 30, 2012."
Ms. Wasson subsequently initiated this appeal, citing "two specific reasons" for asking this office to review the matter; first, because the Board is relying upon "a very literal interpretation of KRS 61.815(2) . . . found lacking in the past" by this office, as evidenced by 01-OMD-181, a copy of which Ms. Wasson enclosed, and second, because The State Journal believes that the Board "improperly relied on KRS 61.810(1)(m)" as the statutory exception purportedly authorizing the closed session, which "focuses on threats to public safety" when the "audit report posed no threats to public safety. " Because the language of KRS 61.810(1)(m), quoted at note 1, is facially inapplicable, as The State Journal has correctly observed, a lengthy discussion or analysis regarding this question is unwarranted. The mandatory language of KRS 61.815(1) and existing legal authority construing it also validate The State Journal's position.
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), pursuant to which:
[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 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 by the Attorney General over the years regarding 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. . . .
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 6 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." Id. 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 recognized that a "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; 00-OMD-47; 01-OMD-181; 02-OMD-200. In other words, 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-OMD-47, p. 6.
The parties do not disagree regarding the relevant facts which precipitated this appeal; rather, the dispute stems from their differing interpretations of KRS 61.815. The relevant statutory language is unambiguous and our longstanding position regarding application of that language remains unchanged. A review of KRS 61.815(1), and subsections (a), (b), and (d) in particular, as well as the foregoing authorities, in short, validates The State Journal's position regarding application of this mandatory provision. Likewise, with regard to the Board's claim that KRS 61.815(2) relieves it of the obligation to comply with otherwise mandatory notice requirements codified at KRS 61.815(1), this office finds that 01-OMD-181, and the analysis found at pages 9 through 14 in particular, is controlling. A copy of that decision is attached hereto and incorporated by reference. See also 03-OMD-178; 05-OMD-148.
Relying upon decisions/opinions dating back to 1980, in 01-OMD-181 this office held as follows:
[T]he legislative intent [underlying KRS 61.815(2)] is that agencies, per se, which are exempt from complying with the Open Meetings Law, such as the Parole Board, juries, the Governor's cabinet, committees of the General Assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in KRS 61.815, and that agencies which are not exempt per se but which go in closed session to deal with an excepted subject matter must observe those formalities.
01-OMD-181, pp. 10-11, citing OAG 80-248, p. 2; accord, Floyd County Board of Education , above. The Attorney General has acknowledged that KRS 61.815(2) lends itself to conflicting interpretations; however, this office is not prepared to depart from thirty-two (32) years of decisions following this interpretation absent a judicial repudiation thereof. 05-OMD-148, p. 13; 08-OMD-091, p. 3.
Because neither the Board nor committees thereof are exempt, per se, from complying with provisions of the Open Meetings Act, both are required to comply with all of the notice requirements codified at KRS 61.815(1) prior to holding a closed session. The admitted failure of the Committee to give proper notice by describing 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" before holding a closed session during the January 27 Board meeting constituted a violation of the Open Meetings Act, specifically, KRS 61.815(1)(a). (Emphasis added.) Referencing a statutory exception four hours later during the Board's regular meeting did not remedy this error as "belated notification is an oxymoron." 09-OMD-172, p. 9; 07-OMD-029. Inasmuch as the Committee therefore discussed matters "other than those publicly announced prior to convening the closed session, " it necessarily violated KRS 61.815(1)(d); lastly, because the Committee has not disputed 7 that no motion was made or vote taken prior to its January 27 closed session, this office must also conclude that it violated KRS 61.815(1)(b).
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:
Katheran WassonLaura M. DouglasLori Davis
Footnotes
Footnotes
1 Pursuant to KRS 61.805(2)(g), public agency means:
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created and controlled by a "public agency" as defined in paragraph (a),(b),(c),(d),(e),(f), or (h) of this subsection.
The KSU Board of Regents is unquestionably a "public agency" ; thus, any committee or subcommittee, ad hoc committee, etc., including the Finance and Administration Committee or Audit Committee, or a Joint Committee comprised thereof, which is established, created, and controlled by the Board is therefore a public agency within the meaning of KRS 61.805(2)(g). See, e.g., Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that the presidential search committee created by action of the Board of Trustees of the University of Kentucky, a public agency created by statute, is itself a public agency) . Accordingly, for purposes of clarity, this office notes that actions of the Committee are in dispute, with the exception of the Board's belated invocation of KRS 61.810(1)(m), notwithstanding the fact that Board and Committee(s) are used interchangeably in the record. See also 93-OMD-49 (holding that a three member grievance committee appointed by the Mayor of the City of Scottsville is a public agency) ; 98-OMD-96 (holding that a sign committee created by the City of Madisonville zoning administrator is a public agency) . See 06-OMD-211.
2 KRS 61.810(1)(m) specifically authorizes public agencies to close "[t]hat portion of a meeting devoted to a discussion of a specific public record exempted from disclosure [per] KRS 61.878(1)(m). However, that portion of any public agency meeting shall not be closed to a member of the Kentucky General Assembly." KRS 61.878(1)(m), in turn, removes from application of the Open Records Act only the following specifically described public records:
1. Public records the disclosure of which would have a reasonably likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act and limited to:
a. Criticality lists resulting from consequence assessments;
b. Vulnerability assessments;
c. Antiterrorism protective measures and plans;
d. Counterterrorism measures and plans;
e. Security and response needs assessments;
f. Infrastructure records that expose a vulnerability referred to in this paragraph through the disclosure of the location, configuration, or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage, and gas systems;
g. The following records when their disclosure will expose a vulnerability referred to in this subparagraph: detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating utility or security systems of any building or facility owned, occupied, leased, or maintained by a public agency; and
h. Records when their disclosure will expose a vulnerability referred to in this subparagraph and that describe the exact physical location of hazardous chemical, radiological, or biological materials.
Subsection two (2) defines "terrorist act" while subsections 3-5 contain instructions that public agencies invoking this exception must apply.
3 KRS 61.835 requires public agencies to maintain "an accurate record of votes and actions taken" at every meeting. (Emphasis added.) As a corollary of this rule of law, the Attorney General has opined that public agencies cannot direct the modification of the draft minutes "to show something other than what . . . actually occurred at the previous meeting." OAG 77-494, p. 1. To do this would be tantamount to falsification of records. Accord, OAG 78-346. On this issue, the analysis contained in 06-OMD-103 (pp. 3-4) is controlling.
4 This office was not provided with a copy of the audio recording; however, the Board has not refuted Ms. Wasson's account of the events in question.
5 KRS 61.810(1)(m) specifically authorizes public agencies to close "[t]hat portion of a meeting devoted to a discussion of a specific public record exempted from disclosure [per] KRS 61.878(1)(m). . . ." (Emphasis added.) See note 1, above.
6 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.'"
7 This office faxed a copy of the "Notification to Agency of Receipt of Open Meetings Appeal" to both Ms. Douglas and Ms. Davis on February 6, 2012, advising that a "response must be received no later than Wednesday, February 8, 2012." On February 9, 2012, the undersigned Assistant Attorney General left a voice mail in the Office of General Counsel inquiring as to whether the agency planned to respond, noting that a final decision had to be rendered on or before ten business days after the appeal was received (or by February 20, 2012, here). As of this date no verbal or written response has been received on behalf of the Board.