Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the City of Frankfort violated the Open Meetings Act in failing to comply with the notice requirements codified at KRS 61.815(1) that "shall be met as a condition for conducting a closed session authorized by KRS 61.810," before going into closed session during its November 28, 2016, meeting. The evidence confirms that the City failed to comply with KRS 61.815(1)(a) before going into closed session to discuss pending litigation. To the extent that OAG 80-248 and OAG 83-377 conflict with the decision and principles set forth in this decision, those decisions are modified.
The Old Y, LLC, owns the old YMCA Building on Bridge Street in downtown Frankfort, and has been in litigation with the City of Frankfort (the "City") regarding the building. Mr. John Gray represents Old Y, LLC, in the litigation, and Robert Moore represents the City. The Old Y, LLC, and the City entered into a "Post Mediation Agreement" on November 28, 2016, as part of the effort to conclude the litigation. That same day, November 28, 2016, the City's Board of Commissioners conducted its regularly scheduled meeting. Item 11 of the published agenda for that meeting stated: "Closed Session per KRS 61.810(1)(c) Litigation and KRS 61.810(1)(f) Personnel. " Mr. Gray asserts in his complaint, "that when a Motion to go into closed session to discuss 'litigation' was made at the City's November 28, 2016 Regular Meeting -- it was made without stating the general nature of the litigation that the City was about to discuss. No reference was made to litigation related to the Old Y LLC." Mr. Gray states that "after coming out of the closed session to discuss 'litigation,' the City voted to approve a Post Mediation Agreement wherein the City agreed to purchase the Old YMCA Building from Old Y LLC."
By letter directed to Mayor William May, City of Frankfort, December 6, 2016, Mr. Gray submitted that the "Frankfort City Commission violated the provisions of the Open Meetings Act by going into closed session to discuss litigation related to Old Y LLC without first stating the general nature of the litigation that the City was about to discuss." Mr. Gray's letter cited KRS 61.815(1)(a) and stated that the City Commission's "generic reference to 'litigation' standing alone does not constitute a 'specific and complete notification' of the general nature of the business to be discussed and does not fulfill the requirements of KRS 61.815(1)(a)..."
Mayor William May, Jr., responded to Mr. Gray's complaint on December 8, 2016. Mayor May did not refute the facts as presented by Mr. Gray, but relied on OAG 83-377 to support the City's method of going into closed session. In relevant part, Mayor May cited OAG 83-377:
The term "general nature of the business to be discussed" is satisfied by terms such as "personnel matter," "collective bargaining," "litigation," and so forth which express the KRS 61.810 subject matters allowed to be discussed in closed sessions. Further detail would obviate the purpose of closed sessions.
Mr. Gray initiated this appeal by letter dated January 23, 2017, and Robert Moore, City Attorney, answered on behalf of the City, by letter dated January 29, 2017. Mr. Moore explained that the Old Y, LLC, and the City of Frankfort participated in a formal mediation session on November 28, 2016, pursuant to orders of the Franklin County District Court and the Franklin County Circuit Court. "At the close of the mediation, the representatives of the Old Y, including Mr. Gray and the City of Frankfort entered into the Post Mediation Agreement attached hereto as Exhibit A. Paragraph 1 of the Post-Mediation Agreement provided that it was 'Subject to the approval of the Frankfort City Commission . . ..'" Mr. Moore's letter also cited to OAG 83-377 for support of the City's method of describing the general nature of the business to be discussed in closed session. Mr. Moore further explained that although the City does not believe it violated the Open Meetings law as asserted by Mr. Gray, the City brought up the Post Mediation Agreement at its meeting on January 23, 2017. At that meeting, the issue of the old YMCA building, the litigation between the City and Old Y, LLC, and the Post Mediation Agreement were thoroughly explained in a two-page Status Report. The Status Report was made a part of the meeting agenda and was read aloud in Open Session before a motion and vote, also in Open Session, to approve the Post-Mediation Agreement and incorporating the Status Report. The motion passed unanimously.
Mr. Moore's response to the appeal further noted that the City will ensure that future motions to move into closed session will recite the language of the applicable exception set forth in KRS 61.810(1) by citing the exception authorizing the closed session as well as indicating " in more descriptive terms " the general nature of the business to be discussed and the reason for the closed session. Because of the remedial actions taken in response to Mr. Gray's Open Meetings appeal, Mr. Moore requested that this office determine the complaint to be moot.
The Open Meetings Appeal is not Moot . The City requested that this office determine the alleged violations of the Open Meetings Act to be moot. In prior Open Meetings decisions 1, this office has applied the underlying logic of 401 KAR 1:030 (as it applies to Open Records appeals) to determine that an Open Meetings appeal is moot. Those decisions have been confined to instances where the public agency "concedes the open meetings error alleged." 04-OMD-072. In this instance, the City has not conceded that it violated the Open Meetings Act, and so we cannot determine the appeal to be moot. Our review is confined to the issue of whether the agency violated the Open Meetings Act and not the remedial measures it implements. 98-OMD-74; see , KRS 61.846(2) providing that the Attorney General shall issue "a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850"; see also , 09-OMD-014.
Violation of KRS 61.815(1) . KRS 61.815(1)(a) provides:
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.
The express purpose of this, as well as the other provisions of the Open Meetings Act, "is to maximize notice of public meetings and actions [and t]he 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, 955 S.W.2d 921, 922 (Ky. 1997). With specific reference to KRS 61.815, the Supreme 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 (emphasis added).
In view of the disparate nature of the thirteen exceptions included in KRS 61.810(1), 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), the notification must include a statement of the exception authorizing the closed session, the reason for 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. (Emphasis added). Clearly, "litigation" accompanied by a reference to KRS 61.810(1)(c) does not meet this standard for pending litigation. 10-OMD-166 (notice of proposed litigation may be less specifically described), s ee also 03-OMD-221. A public agency must describe the business to be discussed in closed session with sufficient specificity to enable the public to assess the propriety of its action. At the November 28, 2016, meeting, the City did not indicate whether the litigation to be discussed in closed session was proposed or pending, whether disclosure of the identity of the party or parties to the litigation would somehow compromise the City's litigation posture, or in any other manner state the reason for the closed session and the general nature of the business to be discussed with sufficient specificity to enable the public to assess its action. As this office has observed, "[T]he Open Meetings Act, and in particular KRS 61.815(1)(a), 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" so as to avoid defeating the purpose which necessitated the closed sessions. 00-OMD-64, p. 6. To the extent that the City did not strictly comply with KRS 61.815(1)(a) as construed in Ratliff , above, we find that its actions violated the Open Meetings Act. The City relied upon OAG 83-377 2 in its response to Mr. Gray's complaint and this appeal, but, to the extent that OAG 83-377 and OAG 80-248 (relied on by OAG 83-377) conflict with the decision and principles set forth in this decision regarding pending litigation, those opinions are modified. 3
Alleged Discussion of Future Acquisition of Real Property . Mr. Gray filed a separate Open Meetings appeal alleging a violation of KRS 61.815(1)(d). The argument in that complaint was that, during the closed session on November 28, 2016, in addition to discussing litigation, the City also discussed the possible purchase of the Old YMCA building. Pursuant to KRS 61.815(d) "[n]o matters may be discussed at a closed session other than those publicly announced prior to convening the closed session. " As the City had not identified purchasing the old YMCA building as a reason for going into closed session, Mr. Gray alleged that the City had violated KRS 61.815(1)(d). In Mr. Moore's response to this claim, he stated that the purchase was a part of the mediated settlement agreement set forth in the Post Mediation Agreement, and that the Post Mediation Agreement was the only issue discussed in the closed session. Our review of the Post Mediation Agreement confirms that the purchase price of the old YMCA building was included in that agreement. Under this set of facts, we find no violation of KRS 61.815(1)(d) as the discussion of the litigation would necessarily have included the terms of the Post Mediation Agreement, one of which is the purchase of the old YMCA building. It would have been error for the City to cite the possible acquisition of the old YMCA building as a basis for going into closed session unless, pursuant to KRS 61.810(1)(b), 4 "publicity would be likely to affect the value" of that building.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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