Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
J. Fox DeMoisey initiated this Open Meetings Appeal by letter dated July 26, 2017, challenging the denial by the Kentucky Board of Medical Licensure ("KBML") of his July 6, 2017, complaint, made on behalf of his client, Paul V. Brooks, M.D. Having set forth a detailed summary of the circumstances which prompted his complaint, Mr. DeMoisey alleged that KBML violated the Open Meetings Act "by failing to notice [Mr. Brooks] that his case was going before an Inquiry Panel for the purpose of acquiring a directive that he submit to a Clinical Assessment and later to acquire an ' Order of Indefinite Restriction ' predicated on KRS 311.604." Mr. DeMoisey further alleged that "no notice was given to the public and specifically no notice was given to Dr. Brooks or his counsel (despite repeated requests) that the matter was going to be presented to Inquiry Panel A presumptively in open session. " In summary, Mr. DeMoisey alleged that KBML did not provide sufficient notice of the items on the agenda for the regular meetings; failed to strictly observe all of the requirements codified at KRS 61.815(1) prior to entering into executive sessions and improperly discussed matters beyond the scope of any exceptions codified at KRS 61.810(1); and violated the Act in failing to afford his client an opportunity to participate in the meeting at which KBML "placed his license on 'indefinite restriction' (in order to obtain a clinical assessment) when the alleged need for the clinical assessment was the direct consequence of the KBML's own misconduct."
To remedy the alleged violations, Mr. DeMoisey proposed that KBML, in relevant part, "be required to fully comply with KRS 61.815 in terms of noticing all physicians and their counsel when their cases may come up for review or action either at an Inquiry Panel or a Hearing Panel." Mr. DeMoisey also proposed that KBML, with regard to Dr. Brooks' case specifically, "be held to [have violated] KRS 61.815 for failing to file a public notice concerning the matter that Dr. Brooks' case was going to be considered by the Inquiry Panel on the dates hereinabove stated; and, that in view of the objections and persistent requests of Dr. Brooks to be so notified that the KBML's action be deemed to be 'willful' as that term is used in KRS 61.848[.]" 1
In a timely written response, KBML Executive Director Michael S. Rodman addressed Mr. DeMoisey's complaint as follows:
KRS 61.805 to 61.850 [the Open Meetings Act] does not require that prior written notice of a regular meeting agenda be provided to the public or to a licensee to the degree of specificity asserted by you. Neither KRS 61.815 nor 61.820 require that the public or a licensee be given any notice of any specific matter on a regular meeting agenda. In addition, KRS 61.840 governs issues of public attendance at a regular meeting and does not confer a right to notice or right to address an agency during a meeting. See OAG 95-OMD-99.
There are three regular meetings involved in your letter: October 17, 2013, April 17, 2014, and August 20, 2015. Pursuant to KRS 61.820, the Board provided a schedule of the Inquiry Panel's regular meetings on its website. Although not required, a copy of a public agenda was made available to the public at the meeting. A portion of the agenda specified cases and licensees to be discussed in open session and it also indicated when in the course of the meeting matters to be discussed in closed ("executive") session would take place; however, the specific matters to be discussed in closed session were not specified by licensee name or case numbers. This was not a violation of the Open Meetings [Act] because all that is required is a public announcement in a regular open meeting of the general nature of the business to be discussed in closed session and the specific provision authorizing the closed session. See 05-OMD-017. . . .
Director Rodman correctly observed that Mr. DeMoisey's primary complaint, aside from the notice question, is that KBML violated the Act "in some way by not allowing Dr. Brooks an opportunity to testify or present evidence directly to the Inquiry Panel before it issued the KRS 311.604 default order and/or you assert that Dr. Brooks required a KRS Chapter 13B hearing on the charges in the Complaint before a KRS 311.604 order could be issued." KBML noted that our scope of review only encompasses the provisions of the Open Meetings Act; thus, it follows that interpretation or application of unrelated statutory provisions, including KRS 311.604 or KRS Chapter 13B, is not appropriate in the context of an Open Meetings Appeal initiated under KRS 61.846(2). Dr. Brooks already initiated a judicial review of the Inquiry Panel's Order, issued under those statutes, in Jefferson Circuit Court, Division 10, Case No. 15-CI-04956. 2
Upon receiving notification of Mr. DeMoisey's Appeal from this office, Leanne K. Diakov, General Counsel, reiterated the agency's position regarding compliance with KRS 61.815 (notice requirements for a closed session) , 61.820 (schedule of regular meetings and lack of agenda requirement), and 61.840 (no right to participate) ; additionally, Ms. Diakov justified her client's reliance on KRS 61.810(1)(c) as the basis for the closed session. 3 Ms. Diakov outlined in detail the proceedings authorized under KRS 311.591. Quoting from
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923-24 (Ky. 1997)(this exception applies "to matters commonly inherent to litigation, such as preparation, strategy, or tactics" and the litigation "may be merely threatened" but does not apply where the possibility "is still remote"), KBML advised:
In this case, the litigation was not threatened but in fact pending , the matters discussed were those inherent to litigation; strategy or tactics that would affect ongoing litigation, including by termination . On each of the Panel's regular meeting dates [referenced above], the Board had pending litigation against Dr. Brooks' medical license. Two years having passed since the emergency order had been issued against Dr. Brooks' license and the Complaint still pending, KRS 311.604 presented a tactical option for the Board to impact the Complaint proceedings by pursuing an alternative path. In order to candidly weigh its legal options and the implications regarding its pending litigation against Dr. Brooks' license, it was necessary that the Inquiry Panel confer in closed session with its counsel about avenues to pursue and tactical considerations relating to the continued litigation of the case it had initiated in 2011.
(Emphasis added.) Based upon the foregoing, KBML maintained that "this is exactly the type of counsel on pending litigation" that is contemplated by KRS 61.878(1)(c). This office finds that existing legal authorities interpreting this exception validate the agency's position; however, those authorities refute its position regarding KRS 61.815(1). 4
Recognizing that extraordinary circumstances occur which might justify a public agency discussing public business during a closed session, the General Assembly created a number of exceptions to KRS 61.800, which are codified at KRS 61.810(1)(a)-(n). As previously indicated, resolution of this appeal turns partially on the language of KRS 61.810(1)(c), which authorizes public agencies to have "[d]iscussions of proposed or pending litigation against or on behalf of the public agency" in closed session. In Floyd County Board of Education v. Ratliff , the Kentucky Supreme Court interpreted KRS 61.810(1)(c) as follows:
[T]he drafters of the 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 be merely 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. [Citation omitted.]
Id. at 923, 924. Numerous decisions by this office which predate Floyd County Board of Education v. Ratliff adopted this view. In OAG 78-227, for example, this office held that KRS 61.810(1)(c) was intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to litigation , threatened with litigation, or anticipates initiating litigation on its own behalf. Applying these general principles, the Attorney General held that the Highland Heights City Council properly conducted a closed session to discuss strategy, tactics, and the possible settlement of a condemnation proceeding against the City (92-OMD-1728). See 04-OMD-039 (public agency properly invoked KRS 61.810(1)(c) as this exception "is broad enough to extend to closed session briefings by agency counsel on the strengths and weaknesses of a case, actual or threatened . . . [and the] fact that the actual or threatened litigation relates to an ordinance does not deprive the agency of the right . . . to shield its litigation strategy from public scrutiny"); 09-OMD-208; 10-OMD-217.
In this appeal, there is no question that KBML was a party to litigation during the relevant periods. Under this line of authority, KBML was fully justified in holding a closed session for the purpose of discussing matters inherent to its litigation with its general counsel, i.e. , "strategy or tactics that would affect ongoing litigation," and specifically to "candidly weigh its legal options and the implications regarding its pending litigation against Dr. Brooks' license, " on the basis of KRS 61.810(1)(c). However, KBML did not fully discharge its duty under KRS 61.815(1)(a), pursuant to which a public agency, before going into closed session, must provide notice "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. " (Emphasis added.)
Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, in Ratliff the Court reasoned that "prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed[.]" Id. at 924. In other words, KRS 61.815(1)(a) "contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed." 00-OMD-64, p. 6; see also 12-OMD-102. As the Attorney General has consistently recognized, "a notification which does not include a statement of the specific exception relied upon to conduct a closed session, a description of the general nature of the business to be discussed in, and the reason(s) for, the closed session is inadequate." 03-OMD-221, p. 4; 10-OMD-059. "Clearly, 'litigation' does not satisfy this standard. Nor does 'litigation' accompanied by a reference to KRS 61.810(1)(c)." 07-OMD-099, p. 8. Likewise, this office has rejected the argument that referencing a meeting agenda containing a citation to the statutory exception authorizing the closed session is adequate. See 10-OMD-017; 15-OMD-057.
When relying upon KRS 61.810(1)(c) specifically, prior to entering into a closed session "it is necessary for the body to identify the specific litigation to be discussed. Litigation currently pending is a matter of public record, therefore, it is difficult to imagine a way in which the public agency would be placed at a strategic disadvantage by making that disclosure." 10-OMD-166, p. 4; 93-OMD-119; 01-OMD-41. KBML cited, among other exceptions, KRS 61.810(1)(c), and entered into executive session "to 'discuss and deliberate upon matters currently in litigation." In announcing only the statutory exception and the general nature of the business to be discussed (two of three elements required) on each occasion, KBML failed to effectuate the remainder of the mandatory language of KRS 61.815(1)(a) . Although discussion was actually restricted to a subject permissible under KRS 61.810(1)(c), any discussions between KBML/Inquiry Panel members "concerning matters not identified in the open meeting with proper notice [were] a violation of the Open Meetings Act and constitute[d] illegal conduct. Ratliff at 924. See 06-OMD-211; 08-OMD-040; 16-OMD-129. With this exception, KBML complied with relevant provisions of the Open Meetings Act; KBML was not statutorily required to provide agendas for the regular meetings in dispute, as Mr. DeMoisey acknowledged, nor did the Open Meetings Act vest Dr. Brooks with an opportunity to participate in those meetings beyond having the opportunity to effectively observe the proceedings.
In contrast to KRS 61.823, the provision that governs special meetings, and which expressly requires the inclusion of an agenda in the posted written notice of such meetings, KRS 61.820 does not require agencies to prepare an agenda for a regular meeting. This office has also consequently recognized that if a public agency elects to prepare one, "it is not bound to observe the standard of fair notice to the public of particular topics to be discussed or acted upon that was recently articulated [in 01-OMD-175]." 01-OMD-181, p. 5 (emphasis added); 01-OMD-175 (recognizing 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"); 08-OMD-212; 11-OMD-132. In so holding, the Attorney General did not "mean to suggest that public agencies may prepare agendas for regular meetings that are consciously misleading or entirely inaccurate." Id. Rather, because no agenda requirements or limitation on discussions and actions for a regular meeting are statutorily imposed, "public agencies cannot be held to the same high standard in preparing their agendas for these meetings." Id. The fact that KBML has a differing interpretation of the other statutory provisions implicated here does not rise to the level of evidence to support Mr. DeMoisey's argument that KBML "was attempting to conceal the 'misconduct' which existed as a fraudulent basis for the initial Admin. Case No. 1349" nor are the relevant agendas facially inaccurate.
"Neither KRS 61.840, nor any other provision of the Open Meetings Act, has been interpreted to vest the public with a right to participate, by means of public comment, in a meeting." 11-OMD-030, p. 4 (no condition was imposed on the statutorily guaranteed right of attendance but a condition was imposed on participation by public comment, "which is not such a right"); 95-OMD-99; 00-OMD-169. With the exception of not announcing the "reason" for the closed sessions per KRS 61.815(1)(a), the actions of KBML relative to each of the specified regular meetings did not violate the Act.
Either party may appeal this decision 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 must not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 The remainder of the remedies that Mr. DeMoisey proposed relate to interpretation of KRS 311.604; he devoted much of his complaint and letter of appeal to discussion of whether KRS 311.604 and related provisions were properly applied to his client, in addition to asking this office to "investigate his case and the attendant serious issues his case represents not only to Dr. Brooks but to other physicians similarly concerned." However, the Attorney General is not statutorily authorized to "adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, including KRS Chapter 13B, KRS 311.604, etc.]" in this forum; likewise claims that his client was not afforded "due process" are not justiciable in this forum. 10-OMD-120, p. 2; 15-OMD-142. See KRS 61.846(2).
Likewise, this office "is not empowered to declare void actions taken, impose penalties for violations of the Act, or compel an agency to implement the remedial measures proposed." 08-OMD-005, p. 9. Only the courts are statutorily authorized to make a determination as to whether the actions of KBML were, indeed, willful. See KRS 61.848(6)
2 On appeal, KBML asserted that Mr. DeMoisey has "substantively alleged the same issues and requested the same relief as he now seeks here." KBML thus maintained that the Attorney General should essentially decline jurisdiction of the instant Open Meetings Appeal; counsel for KBML noted that Dr. Brooks alleged that it "engaged in fraud or misconduct for which he is entitled to discovery (specifically, deposition of Board counsel and members)." Upon request, KBML provided this office with a copy of the relevant Petition for Judicial Review and related pleadings. Having carefully reviewed those documents, the Attorney General must respectfully decline to grant KBML's request as the relevant issues presented here only concern application of provisions of the Open Meetings Act, such as KRS 61.815, and the Petition does not allege violations of those provisions notwithstanding the fact that all of the issues resulted from the same nucleus of circumstances; rather, it focuses exclusively on provisions of KRS Chapter 13B which, as previously indicated, are not justiciable under KRS 61.846(2). The Open Meetings Act is not referenced in the pleadings until the "Petitioner's Reply to the Response Asserted by Kentucky Board of Medical Licensure with Respect to Discovery," and then only to advise that Dr. Brooks had initiated a complaint to KBML and was in the process of initiating an Open Meetings Appeal. Compare 07-OMD-248.
3 KBML also elaborated upon its view that each closed session was authorized under KRS 61.810(1)(j); discussion of this exception is unnecessary given that KRS 61.810(1)(c) was applicable.
4 In 05-OMD-017 (Jon L. Fleischaker/Kentucky Board of Medical Licensure), KBML had failed to provide a citation to the specific exception authorizing the closed session and this omission violated KRS 61.815(1)(a). A detailed analysis of KRS 61.815(1)(a) was otherwise not required; nor does the quotation derived from an earlier Open Meetings Decision, which KBML interpreted to mean that only the statutory citation and the general nature of the business were required, alter the meaning of the plain statutory language or the decisions issued since 2005.