Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Oldham County Board of Adjustments and Appeals violated the Open Meetings Act at its regular meeting on December 15, 2011. For the reasons that follow, we find that the Board did not fulfill the requirements of the Act as to notice of a closed session and has not justified the presence of a non-member in closed session.
By letter dated August 27, 2012, Judy Ponder submitted a written complaint to Board of Adjustments and Appeals Chairman Larry E. Otterback II, in which she alleged that at its December 15, 2011, meeting the Board went into a closed session without following the procedures required by KRS 61.815(1). She also alleged that the Fiscal Court improperly discussed litigation in closed session with an opposing party's representative present. Specifically, she claimed that "Oldham County Planning and Zoning Administrator Jim Urban," who was a plaintiff in a lawsuit against the Board of Adjustments, was present in the closed session discussing that lawsuit, along with "his subordinates Ms. Amy Alvey, Ms. Tara Dickerson, and Brian Davis." Ms. Ponder included a lengthy list of proposed remedial measures.
Oldham County Attorney John K. Carter replied on August 30, 2012, with a letter stating:
[The Board] denies that any violation of the Open Meeting Act ? occurred. The closed meeting referred to in your complaint was appropriately closed under the open meeting exemption set out in KRS 61.810(1)(c) which exempts meetings to discuss new litigation. The litigation discussed at the meeting was filed by you which did not involve Jim Urban, Director of Oldham County Planning and Development Services.
Ms. Ponder initiated this appeal with a letter dated September 17, 2012.
The County Attorney responded to the appeal on September 25, 2012, including an affidavit from the Board's contract attorney, Beach A. Craigmyle, who was present at the meeting on December 15, 2011. The pertinent part of Mr. Craigmyle's testimony reads as follows:
At the regular meeting held December 15, 2011, the chairman mentioned that the BOA [Board of Adjustments] had been sued, at which time I recommended that we go into closed session to discuss the case.
A motion was made to go into closed session to discuss pending litigation pursuant to KRS 61.810(1)(c). The motion was seconded and the vote passed, at which time the audio/video was turned off.
The only persons present at the meeting were the five board members, ? and the agency representative, Brian Davis, and myself.
Jim Urban was not present at the closed session, nor were any other staff members or other persons present in the room or within hearing of the closed session.
During the closed session, the following case was discussed: Jim Urban et al v. Oldham County Board of Adjustments et al, Oldham Circuit Court, Case No. 11-CI-00100, filed November 21, 2011. No minutes were taken.
Since legal advice was rendered in connection with the pending litigation, the discussion is subject to the attorney-client privilege.
(Emphasis in original; numbering omitted.) Addressing the incorrect statement in the original response as to which lawsuit was discussed, Mr. Carter asserts that "the subject matter of proposed or pending litigation discussed in closed session does not matter, with the caveat that there must be pending litigation or the realistic expectation of future litigation." We agree insofar as the applicability of the exemption, as such, does not depend upon the identity of particular litigation, although discussion in closed session must be limited to those matters that were publicly announced. KRS 61.815(1)(d).
With regard to the alleged presence of non-Board members in the closed meeting, Mr. Carter argues:
Ponder erroneously complains about the attendees at the closed session specifically Jim Urban, Director of Oldham County Planning and Zoning citing KRS 61.810(1) is misplaced. KRS 61.810(1) applies only to closed sessions in which the public agency is acting in a judicial or quasi-judicial capacity not when it is discussing litigation or pending litigation. In any event, none of the persons Ponder claims to have been present were in fact present.
We are unaware of any authority supporting the novel argument that the Open Meetings Act "applies only to closed sessions in which the public agency is acting in a judicial or quasi-judicial capacity." Furthermore, one of the persons claimed by Ms. Ponder to have been present, Brian Davis, evidently was included in the closed session. Neither Mr. Carter's letter nor Mr. Craigmyle's affidavit explains the need for Brian Davis to have been present.
The affidavit describes Mr. Davis as "the agency representative," but does not explain what agency he represented or the scope and purpose of such representation. What is apparent from the record is only that Mr. Davis is not a member of the Board of Adjustments nor its legal counsel. As this office has previously made clear,
[w]hen an agency ? goes into closed session, according to proper procedure, it may allow only persons in the closed session as long as there is a reason for their being there. ?
In order to avoid arbitrariness and to conform to reasonable standards, we believe that a person who is brought into a closed session for a purpose should remain in the session only as long as the purpose is being served. If a person is a witness on a certain matter, he should leave the closed session after he has testified. In inviting non-members into a closed session, we believe that the agency has the duty to explain why such persons are invited into the session.
OAG 77-560; see also 00-OMD-219. Since the Board of Adjustments has offered no justification for Brian Davis' presence in the closed session, we must conclude that the Board violated the Open Meetings Act in the course of its meeting.
As for the affidavit's assertion that the closed session was properly announced pursuant to KRS 61.810(1)(c), we note based on the video CD of the December 15 meeting, provided to this office by Ms. Ponder, that no citation of that subsection ever took place. The following pertinent dialogue can be heard on the recording:
MR. CRAIGMYLE: "And I would encourage you, and I asked earlier that that be done, that there be a motion made by one of the members that we go into closed session to discuss pending litigation. "
?
CHAIRMAN: "I would suggest that it would be appropriate to do a motion to go into closed session so that we might appropriately discuss the pending action that has been filed against the Board."
UNIDENTIFIED VOICE: "So moved."
KRS 61.815(1) requires that a closed session must be announced by giving not only the reason and the general nature of the business to be discussed, but also "the specific provision of KRS 61.810 authorizing the closed session. " Although the Board was proceeding under KRS 61.810(1)(c), the subsection was never cited. Since the Board identified no specific provision of KRS 61.810, the closed session was conducted in violation of KRS 61.815(1). 09-OMD-169.
Mr. Carter contends that "[c]losed sessions for the purposes set out in KRS 61.810(1)(c) are specifically exempted from the requirements of KRS 61.815(1) by KRS 61.815(2)." This has not been the interpretation given to the Act by this office. ( See 12-OMD-179 and authorities cited therein.) Accordingly, we conclude that the Oldham County Board of Adjustments and Appeals violated the Open Meetings Act with regard to the closed session on December 15, 2011.
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:
Ms. Judy PonderLarry E. Otterback II, ChairJohn K. Carter, Esq.