Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Glencoe violated relevant provisions of the Open Meetings Act during its June 11, 2018, regular City Council meeting. In his June 15, 2018, written complaint, directed to Mayor Michael Hampton per KRS 61.846(1), Michael Murphy alleged that during the June 11, 2018, regular meeting, "at 7:10 PM and at & [sic] 7:27 PM, "council members Jonathan Berkshire and Brent Caldwell started whispering back and forth to each other." Mr. Murphy asserted that "because their discussion was inaudible and disruptive to the public," those City Council members violated KRS 61.840, which requires the City Council "to allow effective public observation of the public meetings." 1 He further alleged that Council member James Edmondson "also had an inaudible and disruptive discussion with the County Judge, which I believe may have also violated" KRS 61.840. "As for the closed session, " Mr. Murphy alleged the City Council violated KRS 61.815(1)(a) "by excluding the general nature of the business to be discussed in closed session, and the reason for the closed session, and only providing the statutes that applied to it." Finally, Mr. Murphy asserted the City Council also violated KRS 61.840 in asking the attendees to leave the building where the meeting was held while it was in closed session. He noted "three (3) other offices" were available to use for the closed session.
To remedy the alleged violations, Mr. Murphy proposed the City Council should "have its members refrain from all inaudible discussions with each other" during all regular and special meetings, and "the mayor shall maintain order so the public can hear the proceedings without interference from council members talking over each other's or private discussions with other person(s)." With regard to KRS 61.840, Mr. Murphy asked the Mayor to "enforce KRS 61.840" by ensuring that adequate meeting room conditions are provided, "including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings." Having received no response to his June 15, 2018, complaint (sent by certified mail and receipt confirmed on June 23, 2018, by the City Clerk), Mr. Murphy initiated this appeal by letter dated July 6.
Upon receiving notification of Mr. Murphy's appeal from this office, City Attorney Corey T. Gamm responded on behalf of the City Council. Mr. Gamm first noted that he did not receive a copy of Mr. Murphy's June 15, 2018, complaint until the City Council's regular meeting on July 9, 2018. He enclosed a copy of his July 10, 2018, response to Mr. Murphy's complaint, acknowledging the agenda for the July 6, 2018, regular meeting cited "both litigation and personnel reasons for a closed session, however, in fact, the City only entered a closed session to discuss threatened litigation involving the City. All personnel matters were addressed during the open meeting, and personnel was never cited as a basis for the motion to enter closed session. " 2 Mr. Gamm reiterated the City Council "complied with all requirements of KRS 61.810 and 61.815 in regard to the closed session. "
In his July 10, 2018, response, Mr. Gamm stated:
The City does not believe any of the items listed . . . in your letter constitute a violation of [KRS 61.840]. With regard to [allegedly inaudible conversations between the named Council members and between one named Council member and the Judge Executive], it is regrettable that you were unable to hear all statements made by Council Members during the meeting, but there was no intent by the City to obscure its discussions and business from you or any other Member of the public. Unfortunately the City does not have an audio amplification system. Any action taken by the City during that meeting was done by an open, audible and clear vote of the Council Members present. To assuage your concern, Mayor Hampton, at the regular meeting held on July 9, 2018, made a concerted effort to request that council members make all statements in a manner that [was] audible to the public in attendance.
With regard to [allegations regarding inaudible conversations and the failure to provide a separate area in which members of the public could gather during the closed session] as they relate to an alleged violation of KRS 61.840, the Glencoe City Hall has been used for all regularly scheduled meetings for several years. The meeting room and conditions are more than adequate for the purpose of "space, seating, and acoustics . . . which allow effective public observation of the public meetings." That said, the smaller offices in the building will be used in the future to hold closed sessions if inclement weather would make it unfeasible or uncomfortable for the public to wait outside the structure during closed sessions. The closed sessions of the Glencoe City Council are generally of short duration and entered into at the end of the regular agenda in order to minimize inconvenience to members of the public in attendance.
The City Council further disagreed with Mr. Murphy's allegation regarding its compliance with KRS 61.815. In this particular case, Mr. Gamm observed, "the Council went into closed session pursuant to subsection (c) to discuss proposed litigation against or on behalf of the City." As required under KRS 61.815, the City Council "announced that the closed session would be for that purpose and passed a motion to enter into closed session for that purpose. As required, the City Council members discussed only that subject and took no action in closed session. " Following the closed session, the City Council "reopened the public meeting and announced that no action had been taken."
In relevant part, KRS 61.846(1), provides:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays , after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision . . . . The response shall be issued by the presiding officer, or under his authority , and shall constitute final agency action.
(Emphasis added.) In construing KRS 61.846(1), this office has consistently explained that it "does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period." 03-OMD-116, p. 2; 13-OMD-158. As the Kentucky Court of Appeals noted in reference to parallel requirements of the Open Records Act codified at KRS 61.880(1), "[t]he language of the statute directing agency action is exact." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029, p. 4. This holding applies with equal force to KRS 61.846(1). See 13-OMD-005.
On appeal, Mr. Gamm stated the City "has no regular employees and only a part-time clerk." For this reason, he did not receive a copy of the complaint until the City Council's regularly scheduled meeting on July 9, 2018. Although Mr. Gamm promptly complied on July 10, 2018, "KRS 61.846(1) is clear on its face and it does not provide for extensions of time in which to respond." 11-OMD-023, pp. 8-9. As in past decisions, the Attorney General "finds no error in the [agency's] apparent practice of seeking [advice of its legal] counsel before responding to requests made under the Open Records Act or complaints made under the Open Meetings Act in the interest of efficiency assuming that no delay beyond the statutorily authorized time frame of three business days occurs." Id. , p. 9; 11-OMD-019. A complainant may agree to a reasonable delay, "but failing to issue a final written response within three business days of receiving a complaint, regardless of the reason, constitutes a violation of KRS 61.846(1)." Id . See 11-OMD-010; 13-OMD-049; 10-OMD-117; 13-OMD-158.
With regard to allegations that members of the Council engaged in whispered conversations that were inaudible to attendees of the meeting, and thus disruptive, this office finds the record on appeal "is insufficient to support the claimed violation of KRS 61.840, and in view of the disparate nature of the record, acknowledges that we are not equipped to resolve the factual dispute presented." 03-OMD-178, p. 16 (complainant attached the letters of six attendees who expressed varying degrees of dissatisfaction but agency referred to "statements of various officials and attendees who expressed no dissatisfaction" with meeting room conditions"). The City focused on its lack of intent "to obscure its discussions and business" from any member of the public, including Mr. Murphy. However, a finding of intent on the part of the agency is not required to find a violation of KRS 61.840. In 03-OMD-178, as in this case, the record on appeal was "devoid of proof that any official was advised of the problem." Id. , p. 17. "There is no requirement of public objection found in the [Open Meetings Act] ." Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997); 03-OMD-178; 15-OMD-113. However, this office agrees "that agency members or meeting participants whose statements are inaudible, but who are unaware of the problem, cannot reasonably be expected to rectify the problem." 03-OMD-178, p. 17. Compare 97-OMD-28. The City is now aware of this issue and Mayor Hampton subsequently asked that all Council members be mindful of making all statements "in a manner that is audible to the public in attendance. "
Ultimately, the Attorney General is unable to conclusively resolve this issue given the conflicting evidence presented. See 03-OMD-178; 12-OMD-182. If members of the City Council discussed public business in tones that were not audible by the public that was clearly inconsistent with KRS 61.840; however, the record is devoid of evidence by which to independently confirm this account. Problems associated with adjudication of this question "are compounded by the fact that our review is limited to the written record presented by the parties. KRS 61.846(2). The divergent factual accounts presented by the parties with regard to this issue compel us to conclude that the record is insufficient to support the claimed violation." 03-OMD-178, p. 17. In sum, the Attorney General is unable to resolve this factual dispute in favor of either party, but encourages the agency "to take all appropriate measures to provide meeting room conditions that conform to the requirements of KRS 61.840[.]" Id. ; 12-OMD-182.
The record on appeal validates Mr. Murphy's allegation that reasonable alternatives to removing attendees from the building, and having them wait outside for the duration of its closed session, existed. Prior to June 25, 2013, the Open Meetings Act did not expressly address the meaning of "convenient to the public" in the context of KRS 61.820(1). However, the amended version of KRS 61.820(1) provides, "All meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public. In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics. " As in 14-OMD-020, this office finds that "[a] careful reading of [the amended] language [of KRS 61.820] supports [the complainant's] belief that it is not restricted to open sessions but requires agencies, generally, to consider these facts in making adequate provision for the public's convenience during the course of the entire meeting and not just during open session. " Id. , p. 3. Similarly, the current version of KRS 61.840 provides, "All agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings."
In 14-OMD-020, this office reasoned as follows in finding that a public agency violated KRS 61.820(1) in failing to make adequate provision for the convenience of the public during a closed session:
The term "convenient" is commonly understood to mean "suited or favorable to one's comfort, purpose, or needs[.]" The American Heritage College Dictionary 312 (4th ed. 2002); see also Merriam-Webster's Collegiate Dictionary 813 (10th ed. 1998) ("suited to personal comfort or to easy performance"). A meeting location that is unsuited to a reasonable standard of personal comfort at all times, and not just during an open session, is inconvenient under KRS 61.820(1) as amended. It is incumbent on public agencies, including the Taylorsville City Commission, to make adequate provision for the public's "convenience" not only during their open sessions but also when their sessions are lawfully closed.
Id. , p. 3. Just as the agency in 14-OMD-020 violated KRS 61.820(1) in requiring members of the public in attendance to leave the City Hall Annex where its regular meeting was being held "at the commencement of its closed session and remain in the parking lot until the open session resumed," the Glencoe City Council violated KRS 61.820(1) in asking the attendees of its June 11, 2018, regular meeting to leave City Hall and wait outside during its closed session, because smaller offices located in the same building could have been utilized for the closed session. See 13-OMD-107. Compare 14-OMD-182 (distinguishing 14-OMD-020, "where the city commission in effect provided no place for the public at all[,]" in holding that waiting conditions, i.e. , entryway, hallway, and break area that were not air-conditioned and which had limited seating, were not "so oppressive as to be 'unsuited to a reasonable standard of personal comfort' ").
The final question presented is whether the City Council fully complied with KRS 61.815(1)(a) before holding a closed session pursuant to KRS 61.810(1)(c). Mr. Murphy correctly noted the agenda for the meeting, under "Old Business," indicated that a closed session was going to be held, "Pursuant to KRS 61.810(1)(f) to discuss personnel issue and KRS 61.810(1)(c)." No agenda was required for the City Council's regular meeting. See note 2, above; KRS 61.823. Accordingly, this office is unable to find the City Council violated KRS 61.823(3) in deviating from the items listed on the agenda by not discussing the appointment, discipline, or dismissal of an individual employee, member, or student during its closed session per KRS 61.810(1)(f). However, the City Council initially advised that it "went into closed session pursuant to KRS 61.810(1)(c) to discuss proposed litigation against or on behalf of the City. . . . The Council announced that the closed session would be for that purpose and passed a motion to enter into closed session for that purpose." On appeal, the City Council simply reiterated that it complied with "all requirements of KRS 61.810 and 61.815." However, its description of the motion does not establish full compliance with all of the requirements codified at KRS 61.815(1)(a), nor does the record contain objective proof in the form of minutes of the meeting to verify the City Council not only cited the statutory exception it was invoking but also satisfied the remaining elements of KRS 61.815(1)(a).
KRS 61.810(1)(c) 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 Cnty. Bd. of Educ. 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 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 a 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 (KRS 61.810(1)(c) "is broad enough to extend to closed session briefings by agency counsel on the strengths and weaknesses of a case, actual or threatened . . ."); 09-OMD-208; 10-OMD-217.
Here, Mr. Murphy does not dispute the City Council's reliance on KRS 61.810(1)(c). Under this line of authority, the City Council was justified in holding a closed session for the purpose of discussing matters regarding threatened litigation per KRS 61.810(1)(c) assuming the possibility of litigation was more than remote. See 11-OMD-162. Compare 15-OMD-044. However, it remains unclear whether the City Council fully discharged 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 KRS 61.815(1)(a), 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; 12-OMD-102. "[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; 17-OMD-021. Even assuming the discussion was actually restricted to a subject permissible under KRS 61.810(1)(c), if members of the City Council engaged in a discussion "concerning matters not identified in the open meeting with proper notice," that discussion violated the Act "and constitute[d] illegal conduct." Ratliff at 924. See 06-OMD-211; 08-OMD-040; 16-OMD-129. However, the record on appeal does not contain adequate information for this office to make a finding on that issue.
Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 KRS 61.840 provides:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
2 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. 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); 08-OMD-212; 11-OMD-132. 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.