Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether Northern Kentucky University ("NKU") violated the Open Meetings Act in providing an insufficiently specific special meeting agenda, in discussing specific business proposals in closed session, and in informing employees of matters to be discussed at a special meeting. We find that NKU violated the Open Meetings Act in providing a special meeting agenda listing only an "executive session, " but did not further violate the Open Meetings Act in failing to indicate that a vote may be taken on the topics discussed in that executive session. NKU did not violate the Open Meetings Act in discussing specific business proposals in closed session and in providing notice of the special meeting.
On February 13, 2017, NKU issued a notice of a special meeting to be held at 8:30 A.M. on February 14, 2017. 1 The agenda for the meeting listed only a "call to order," a "roll call," and an "executive session. " The Northern Kentucky Tribune ("Tribune") stated that its "representatives did not attend the meeting, believing that discussion and actions were limited to the items listed and, according to KRS 61.815 (c) [sic], 'no final actions may be taken at a closed session, ' and because there was nothing else on the agenda. " The Tribune then submitted a written complaint to the NKU Board on February 14, 2017. The complaint stated that a special meeting is limited to the items specified on the agenda, and that NKU "had an obligation to . . . identify what they were going to allow comment on in the agenda, " and that "any additional action, such as a formal vote on an item, would also appear to be a violation of the rules governing special meetings."
NKU responded to that complaint on February 17, 2017, stating that at the meeting, the NKU Board chair announced that they would be going into executive session "pursuant to KRS 61.810(f) in order to discuss a personnel matter and pursuant to KRS 61.810(1)(g) to discuss a specific proposal with a business entity where open discussion would 'jeopardize the siting, retention, expansion, or upgrading of the business.'" NKU did not take any final action during closed session, then ended the closed session and discussed in open session proposals to purchase WNKU-FM and WNKE-FM, which were unanimously approved by the NKU Board.
The Tribune initiated this appeal on February 21, 2017. The Tribune argued that "the Special Meeting should have concluded at the end of the Executive Session, since that is the only item listed on the agenda, " and that "the Executive Session constitutes a separate meeting in and of itself and was properly opened and closed." 2 The Tribune also objected that members of the audience and other media who attended the meeting had an opportunity for public comment, on the grounds that "the allowance of limited public comment from a select group to whom information on actions to be conducted in an executive session was provided would seem inappropriate." The Tribune further specified that "the issue disputed here is the propriety and validity of the unscheduled vote at a Special Meeting that followed." Also, the Tribune questioned whether NKU validly invoked KRS 61.810(1)(g), as "this was the discussion of the sale of an asset, so it doesn't seem open discussion would have 'jeopardize (d) the siting, retention, expansion, or upgrading of the business.'"
NKU responded to the appeal on March 2, 2017, stating:
An offer for the sale of WNKE-FM was made by Educational Media Foundation and an offer for the sale [of] WNKU-FM and its assets was made by Bible Broadcasting Corp. NKU scheduled the Meeting of the Board to hold an Executive Session to discuss these offers and also to discuss a personnel matter. As such, the agenda item listed and published in accordance with Kentucky special meeting requirements was "Executive Session. " Prior to the Board entering Executive Session, the Board Chair properly announced that the Board needed to go into Executive Session pursuant to KRS 61.810(1)(f) in order to discuss a personnel matter and pursuant to KRS 61.810(1)(g) to discuss a specific proposal with a business entity where open discussion would jeopardize the siting, retention, expansion, or upgrading of the business. . . .
No final actions were taken by the Board during this Executive Session. Once the Executive Session concluded, the Board properly announced the session was concluded and the meeting was open. NKU had informed its employees working for WNKU a day before that one purpose of the Meeting was to discuss proposals to sell WNKU and its assets. Subsequently, this information was widely disseminated throughout the community and many individuals attended the Meeting . . . .
Once the meeting was open, the Board chair was interrupted by an individual in the audience that requested to speak. Once interrupted, the Board chair stated that the individual would have an opportunity to speak since it was clear audience members were upset and wanted to be heard. In the open Meeting, the proposals to purchase WNKU-FM and WNKE-FM were discussed and ultimately the Board unanimously authorized the President to negotiate and execute the proposed contracts.
It is NKU's belief that since it was possible that the Board would not have returned to open meeting to discuss and ultimately authorize the President to finalize the sale of WNKU and its assets, that listing this item on the agenda in advance was not appropriate. However, in hindsight NKU can understand why listing this item in advance may have been preferable due to the events that occurred.
KRS 61.823(3) provides that "the public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. " In 01-OMD-175, this office held that "the language of KRS 61.823(3), coupled with the statement of legislative policy codified at KRS 61.800,1 and the Kentucky Supreme Court's declaration that '[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions' mandate special meetings agendas that give fair notice of the particular topics to be discussed or acted upon." Id. (citing
Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). "The vague description to 'enter into executive session' does not give the public fair notice of matters to be discussed at the special meeting. " 07-OMD-099. 3 Accordingly, in listing only "executive session" in the special meeting agenda, NKU did not give fair notice of the topics to be discussed or acted upon, and violated the Open Meetings Act.
KRS 61.823(3) further provides that "discussions and action at the meeting shall be limited to items listed on the agenda in the notice. " The agenda for the special meeting lists only an executive session, and KRS 61.815(1)(c) provides that "no final action may be taken at a closed session. " The Tribune contests the validity of the unscheduled vote in open session after the end of the closed session. While it may be best practice to indicate that a vote may be taken in open session after a closed session on an item on a special meeting agenda, it is not in itself a violation of fair notice. See generally 16-OMD-011 ("Fair notice to the public that a vote on the rezoning issue might logically follow the discussion of that narrow subject could reasonably be imputed."); 02-OMD-22 ("While we believe that the Board might have employed more specific language in describing the contemplated action, namely the vote on extending the President's contract, in the November 2 meeting agenda, we are not prepared to say that the agenda item was so vaguely worded that fair notice could not be imputed to the public."). Accordingly, while related to NKU's failure to properly list the topics to be discussed in the closed session, NKU did not commit a separate and additional violation of the open meetings act in failing to indicate on a special meeting agenda that a vote may be taken in open session on items discussed in closed session.
The Tribune also appeals whether the exception under KRS 61.810(1)(g), which authorizes closed sessions for "discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion, or upgrading of the business," was properly invoked to discuss the sale of NKU's radio stations. It is not disputed that specific proposals were discussed in closed session. The record before us is insufficient to determine whether discussion of such proposals "would jeopardize the siting, retention, expansion, or upgrading of the business." 4 Accordingly, the limited record before us is insufficient to find a violation of the Open Meetings Act in discussing the specific proposals for the sale of NKU's radio stations in closed session.
The Tribune further questions what it perceives to be selective dissemination of information regarding the meeting. KRS 61.823(4)(a) provides that "as soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings." KRS 61.823(3) provides that "the notice shall consist of the date, time, and place of the special meeting and the agenda. " The Tribune indicated it had notice of the meeting and declined to attend based on the agenda. While we have found the insufficient specificity of the agenda violated the Open Meetings Act, the Tribune was provided notice of the special meeting and declined to attend. Although employees of the radio stations up for sale were given additional information, the Open Meetings Act does not forbid that; it only requires proper notice of the special meeting to be sent to parties requesting such notice. Accordingly, we do not find that NKU violated the Open Meetings Act in informing employees of matters to be discussed at a special meeting.
In summary, NKU violated the Open Meetings Act in listing only "executive session" on a special meeting agenda, but did not further violate the Open Meetings Act in failing to specify on the agenda that a vote may be taken on the items discussed in executive session. NKU did not violate the Open Meetings Act by discussing specific proposals in closed session or in informing employees of matters to be discussed at a special meeting.
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.
Footnotes
Footnotes
1 It is uncertain from the record whether the notice of the special meeting was sent twenty-four hours in advance. KRS 61.823(4)(a) requires that "the notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting."
2 KRS 61.815(1)(a) requires that "notice shall be given in regular open meeting of the . . . closed session," and KRS 61.815(1)(b) provides that "closed sessions may be held only after a motion is made and carried by a majority vote in open, public session." There can thus be no closed session that constitutes a separate meeting in and of itself in compliance with the Open Meetings Act, and the record indicates that NKU properly moved in open session to hold a closed session.
3 Compare 07-OMD-099, with 12-OMD-146 (agenda announcing that "a closed session would be held 'Pursuant to KRS 61.810(1)(f) [sic] Discussions which might lead to the appointment, discipline, or dismissal of an individual employee'" did not violate fair notice).
4 For example, we have rejected an agency's invocation of KRS 61.810(1)(g) when the specific proposals are already known to the public. See, e.g. , 05-OMD-148 ("An open discussion cannot jeopardize the siting, retention, expansion, or upgrading of a business entity if that entity has made public its intentions."). Although employees of the radio stations up for sale were informed about the potential sale one day prior to the meeting, it is not otherwise clear from the record the extent to which knowledge of or the details of the proposals were publicly available.