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 August 16, 2012. For the reasons that follow, we find no violation of the Act.
By letter dated October 9, 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 August 16, 2012, meeting the Board went into a closed session without following the procedures required by KRS 61.815(1)(a). She also alleged that the Fiscal Court improperly discussed litigation in closed session with a non-member present. Specifically, she claimed that Oldham County Planning and Zoning Administrator Jim Urban, who was not a member of the Board, was present in the closed session. Ms. Ponder included a lengthy list of proposed remedial measures.
Oldham County Attorney John K. Carter replied on October 11, 2012, with a letter denying all aspects of the complaint. He asserted that KRS 61.815(1), which establishes the procedural requirements for conducting closed sessions, did not apply to closed sessions to discuss litigation under
Cunningham v. Whalen, 373 S.W.3d 438 (Ky. 2012), and further denied any need for a public agency to justify the presence of a non-member in a closed session held pursuant to KRS 61.810(1)(c). Ms. Ponder initiated this appeal on October 13, 2012, and on October 18, 2012, Mr. Carter adopted his October 11 letter as the Board's response.
With regard to Ms. Ponder's first complaint, we find that the Board of Adjustments complied with the procedural requirements of KRS 61.815(1)(a) for conducting closed sessions. The Board at its August 16 meeting corrected the defect we found in one of its earlier meetings, in 12-OMD-185, by properly citing "the specific provision of KRS 61.810 authorizing the closed session" as well as "the general nature of the business to be discussed [and] the reason for the closed session. " 1 Thus, there was no violation of the Open Meetings Act in the manner in which the closed session was announced. Mr. Carter, however, makes the further argument that the Board was not required to comply with KRS 61.815(1) because the closed session was conducted to discuss litigation pursuant to KRS 61.810(1)(c).
"[T]he basic policy of [the Open Meetings Act] 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 for by law shall be strictly construed." KRS 61.800. This office, therefore, has already rejected an overly broad interpretation of the Supreme Court's holding in
Cunningham v. Whalen, supra, and has construed the decision as limited to the factual situation of a settlement conference. In 12-ORD-179, a copy of which is attached hereto, we stated:
Cunningham v. Whalen stands for the limited proposition that a public agency may, under authority of KRS 61.810(1)(c), and KRS 61.815(1) notwithstanding, privately conduct a "settlement conference in litigation" as long as the agency conducts a public vote to accept or reject the resulting settlement agreement.
As we observed in footnote 2, the Cunningham decision "did not exclude general 'discussions of proposed or pending litigation' from the KRS 61.815(1) requirement of 'specific and complete notification in the open meeting of any and all topics which are to be discussed.'" 12-ORD-179, n.2. Such an exclusion would have necessitated the overturning of a substantial body of precedent sub silentio, which had not even been addressed in the case before the Court. See, e.g.,
Carter v. Smith, 366 S.W.3d 414 (Ky. 2012);
Floyd County Bd. of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997); see also, e.g., 09-OMD-132; 08-OMD-113; 02-OMD-200. Consistently with our recent interpretation of Cunningham, we accordingly reiterate our view that the holding of the case merely recognizes a narrow exception for settlement conferences to the general applicability of KRS 61.815(1).
As to Ms. Ponder's second complaint, Mr. Carter acknowledges that Jim Urban, who was neither a member of the Board nor its counsel, was present in the closed session on August 16, 2012. In the Board's initial response to the complaint, Mr. Carter took issue with the line of prior decisions upon which Ms. Ponder's complaint was based. The practice of "selective admission" to closed sessions has been consistently condemned by this office from quite early in the history of the Open Meetings Act, OAG 77-560, and most recently between the parties hereto in 12-OMD-185, which will have the force and effect of law under KRS 61.846(4)(b) if not timely appealed. "An action is 'arbitrary' when it is not based on reason. A public agency should not invite certain people to be merely spectators in a closed session and at the same time bar certain other people from being spectators. " 01-OMD-152 (quoting 00-OMD-219); see also 07-OMD-094; 08-OMD-212.
The decisions of this office recognize that, except in the case of deliberations of judicial or quasi-judicial bodies under KRS 61.810(1)(j), "on rare occasion a nonmember may be invited into a closed session for limited purposes." 07-OMD-094, n.4; accord, OAG 80-247; OAG 83-61. The public agency, however, must give a rational justification for the presence of the nonmember and must exclude the nonmember after that purpose has been served:
When 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.
In subsequent correspondence dated October 23, Mr. Carter explained that Jim Urban, as Director of Planning and Development for Oldham County, "acts in advisory capacity to both the Planning Commission and OCBOAA" [the Board of Adjustments], and that, having been employed in that capacity for some years, he "has an expertise in planning and zoning matters." Therefore, "Mr. Urban is an employee of the [Planning] Commission was well as OCBOAA" and "acts in an administrative and advisory capacity to both," thus being "a valuable contributor to the litigation being discussed."
The standard to justify the presence of a non-member in a closed session is not excessively high. The essence of our decisions has been that "[a]ny person who the board believes can contribute information or advice on the subject matter under discussion may be invited into the executive session but should remain only so long as is necessary to make his contribution to the discussion." OAG 77-560. In this case, the Board of Adjustments has sufficiently explained why Mr. Urban was present throughout the closed session. Accordingly, we find no violation of the Open Meetings Act.
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.
Footnotes
Footnotes
1 Contrary to Ms. Ponder's argument, the exact nature or identity of the proposed or pending litigation need not be announced. 09-OMD-188.