Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Bullitt County Fiscal Court violated the Open Meetings Act at its July 16, 2013, regular meeting by discussing unauthorized topics in a closed session under the guise of KRS 61.810(1)(c). We find that the record on appeal supports the claimed violation.
On July 31, 2013, attorney Eric G. Farris submitted a written complaint 1 to Bullitt County Judge Executive Melanie J. Roberts on behalf of his client, Bullitt County Jailer Martha Knox. Mr. Farris alleged that the Fiscal Court violated the Open Meetings Act in the course of its July 16, 2013, regular meeting when it discussed non-litigation matters in a closed session under ostensible authority of KRS 61.810(1)(c). Noting that the action taken after the closed session did not appear as an item on the agenda, he observed:
Nothing in that motion gave any indication of an Executive Session or "closed session" discussion relating to the business of the Bullitt County Detention Center or the elected Bullitt County Jailer, nor had there been any discussion about this issue with the jailer which might indicate any possibility of litigation. Yet, upon return to the open meeting on July 16, 2013, the only action taken (both without any open meeting discussion) were two motions related to your letters. Pursuant to KRS 61.810 and KRS 61.815, all matters discussed relating to the Bullitt County Detention Center and Jailer Knox on July 16, 2013, were illegal and any action taken as a result of that illegal meeting is void.
As a means of remedying the alleged violation, Mr. Farris proposed that the fiscal court "withdraw these illegal motions from the minutes and withdraw [the] letters."
Treating Mr. Farris's July 31 letter as a response to the July 22 records request, 2 the fiscal court did not issue a written response to what was, in fact, an open meeting complaint, prompting Mr. Farris to initiate an open meetings appeal. In his letter of appeal he asks that the Attorney General "review the denial of our efforts to correct the actions of the illegal meetings which occurred not only on July 16, 2013, but again on August 6, 2013, when the enclosed 'Order' and resolutions were presented to the [fiscal] court on a last minute agenda addendum without any discussion in open meeting. " Because the referenced documents were presented at the August 6 meeting, subsequent to the date of Mr. Farris's open meetings complaint and, perforce, not challenged in that complaint, any open meetings issues relating to the August 6 meeting are not ripe for review. We restrict our analysis to the issues relating to the July 16 meeting, and, having considered those issues, find that the record on appeal supports the claimed violation of KRS 61.810(1).
In supplemental correspondence directed to this office, the Bullitt County Fiscal Court denied that it violated the Open Meetings Act at its July 16 meeting, asserting first that it was not restricted to agenda topics at that meeting because it was a regular and not a special meeting. In support, the fiscal court cited 11-OMD-132 in which the Attorney General recognized that "[t]he Open Meetings Act does not require an agenda be prepared for a regular meeting. " Responding to the claim that unauthorized matters were discussed in closed session, the fiscal court explained:
Fiscal Court moved to go into executive session citing KRS § 61.810(1)(c) which requires that they reference the statute and give notice of a general nature of the business to be discussed. This action was done. The issue was possible litigation. Toward the end of the July 16, 2013, meeting, Magistrate Bradshaw made a motion to go into executive session for the purpose of KRS § 61.810(1)(c) and stated that the purpose of the session was for a matter relating to possible litigation. In this situation, the issue to be discussed was discovered on the afternoon of July 15. The Magistrate gave as much detail as he could considering the limited amount of information that was available to him at the time. The executive session was taken on the recommendation of the county's insurance carrier. There was no ulterior motive.
On the morning of July 16, prior to the fiscal court meeting, County Attorney Robinson contacted Attorney Rich Ornstein who is employed by the Kentucky Association of Counties (KACO). KACO insures Bullitt County. At that time, after receiving news of possible liability relating to the jailer purchase of two automobiles for approximately $ 52,005.00 from jail canteen funds, it was KACO's recommendation to have the Court go into executive and review the possible areas of liability and potential litigation for the County. Specifically, KACO made suggestions regarding the type of questions to be requested, documents, etc. from the Jailer.
The notice of the general nature of the item to be discussed is relative one and applies to the situation. In this matter, the Magistrate stated the issue as specifically as he could with limited information. No final action was taken in executive session. Upon return to the open meeting, the Fiscal Court proceeded to issue an ORR relating to the jail's canteen account. Further, the Court also voted to Order the Judge to execute a letter to the Jailer on the Court's behalf requesting a written explanation of the nature of the purchases, etc. All action taken by the Fiscal Court was made in open court. In fact, the news media was present and asked about the circumstances that came to cause the Court's actions. Magistrate Laswell responded that it was related to the purchase of two (2) vehicles by the Jailer from Canteen funds and indicated that the Court was unaware of these purchases and is now being asked to insure the property.
Although we are mindful that where a KRS 61.810(1) is properly invoked, "specifics at the discussion during executive session cannot be disclosed without the risk of exposing confidential information which could be the subject of litigation," 3 we find these arguments largely unpersuasive in the current context because the topics apparently discussed in the July 16 closed session did not constitute matters inherent to litigation such as preparation, strategy, or tactics.
It is a well-established principle of open meetings law that a public agency is not restricted to discussion of agenda items at a regular meeting. At page 6 of 01-OMD-175 the Attorney General determined that "[b]ecause no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings." Accord 11-OMD-132. In contrast, KRS 61.823 specifically requires the inclusion of an agenda in the written notice of special meetings, and, at subsection (3), limits discussions and actions at special meetings "to items listed on the agenda in the notice. " It is undisputed that the July 16 meeting of the Bullitt County Fiscal Court was a regular meeting. The fiscal court was not restricted to discussion of agenda items, and Mr. Farris's allegations as to this issue are, therefore, without merit.
Whether Mr. Farris's second claim has merit is a closer question. He also alleged that the fiscal court violated the Open Meetings Act by conducting unauthorized discussions in closed session under the guise of KRS 61.810(1)(c) . Mr. Farris indirectly asserted that the fiscal court failed to observe the requirements for conducting a closed session, codified at KRS 61.815(1), because it did not state in open session that the reason for the closed session was to discuss potential liability arising from the jailer's purchase of two automobiles from canteen funds. His primary focus, however, was on the content of the discussions. It was his position that "[n]othing in the motion gave any indication of an executive session or 'closed session' discussion relating to the business of the Bullitt County Detention Center or the elected Bullitt County Jailer, nor had there been any discussions about this issue with the jailer which might indicate any possibility of litigation." 4
Mr. Farris does not dispute the right of a public agency to conduct closed session "discussions of proposed or pending litigation against or on behalf of the public agency, " KRS 61.810(1)(c), but challenges the propriety of the July 16 closed session discussion and the resulting action taken in open session. In construing KRS 61.810(1)(c), Kentucky's highest court has declared:
[T]he drafters of this 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 merely be 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.
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923-924 (Ky. 1997). In a recent opinion, the Court amplified on the latter statement, opining:
[T]he exception . . . does not apply . . . where the possibility of litigation is remote or unsubstantiated, Ratliff, 955 S.W.2d at 924. The threat or proposition of litigation must be substantial to trigger the exception. There must be a direct suggestion of litigation conditioned on the occurrence or nonoccurrence of a specific event. OAG 84-240. By way of illustration, the exception would apply where litigation has been suggested because a tortious injury occurred on [public] property, a [public employee] assaulted a [citizen], or an employee received a letter terminating employment . . . .
Carter v. Smith, 366 S.W.3d 414, 419-420 (Ky. 2012). In both Carter and Ratliff , the Court concluded that there "was insufficient threat or possibility of litigation" to justify invocation of KRS 61.810(1)(c).
The fiscal court does not assert, and the record on appeal contains no indication, that litigation against or on behalf of the jailer or the fiscal court had been initiated or even threatened on July 16, 2013, when the challenged closed session was conducted. The action taken in the open session that followed suggests that the discussion focused on the propriety of the purchase, the fiscal impact on the jail canteen fund, and the need to insure the vehicles. Discussion may also have focused on the sheriff's supervision of the home incarceration program although it is unclear how that topic related to the jailer's automobile purchase. These topics do not constitute "matters commonly inherent to litigation, such as preparation, strategy, or tactics, " and the presence of the county attorney did not otherwise shield the discussion from public scrutiny. The record on appeal confirms that the threat of litigation was, at best, remote. Neither the substance of the discussion, nor the immediacy of the threat of litigation, justified invocation of KRS 61.810(1)(c) and the closed session discussion of the jailer's purchase of two automobiles with canteen funds. We therefore conclude that the Bullitt County Fiscal Court violated the Open Meetings Act when it conducted a closed session discussion of these topics at its July 16, 2013, meeting and when it failed to respond to Mr. Farris's open meetings complaint. Although there are extenuating circumstances for each violation, in the case of matters improperly discussed in closed session, the guidance of the agency's insurance carrier, and in the case of the failure to respond to Mr. Farris's complaint, the fiscal court's mischaracterization of the complaint, they remain violations of KRS 61.810(1) and KRS 61.846(1) nevertheless.
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:
Eric G. FarrisMelanie J. RobertsMonica Meredith Robinson
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