Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Louisville-Jefferson County Metro Ethics Commission ("Commission") violated the Open Meetings Act at its regular meeting on October 18, 2018. For the reasons that follow, we find no substantive violation of the Act, but find that the Commission failed to make a timely response to a properly submitted complaint.
By e-mail dated October 18, 2018, David Fink submitted a written complaint to Commission President David Waskey, in which he alleged the Commission had given "no definitive reason" for its closed session on that date, in which the members conducted discussions leading to the dismissal of an ethics complaint made by Mr. Fink against a city council member. As a remedy, Mr. Fink proposed that the Commission vacate its decision and instead "continue to a hearing" on his ethics complaint.
On October 25, 2018, Mr. Fink initiated this appeal, stating that he had received no response to his open meetings complaint. The Commission issued an e-mailed response to Mr. Fink's complaint on October 29, 2018, denying any violation of the Act. That response was untimely under KRS 61.846(1), which provides, in pertinent part:
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 Commission argues on appeal that it was not required to respond to Mr. Fink's complaint because he submitted it electronically. We find no merit to this argument. KRS 61.846(1) requires a complaining party to "submit a written complaint to the presiding officer of the public agency, " but places no limitations on the manner of submission. 1 See 06-OMD-068, n.3 (failure to make a timely response to an e-mailed complaint was a "procedural error"). Thus, the Commission violated KRS 61.846(1) by failing to respond in writing within three business days.
By way of background, we note that the Commission's dismissal of Mr. Fink's ethics complaint was previously the subject of 18-OMD-143, in which we ruled that the Commission had failed, at a prior meeting, to give proper notice of the matters on which it was to hold deliberations in a closed session. The Commission now asserts that it vacated its previous dismissal of the ethics complaint as a result of our ruling and rescheduled the matter for its October 18 meeting, at which the members again deliberated in closed session and, on a subsequent vote in open session, reached the same result.
Mr. Fink's primary argument under the Open Meetings Act is that the Commission gave inadequate notice prior to the closed session. KRS 61.815(1)(a) requires that a public agency give notice of "the reason for the closed session" and "the general nature of the business to be discussed in closed session, " as well as "the specific provision of KRS 61.810 authorizing the closed session. " In pertinent part, the draft minutes of the October 18 meeting, provided to Mr. Fink and this office by the Commission, indicate as follows:
At the last meeting, as a result of the Attorney General's Opinion in regard to Fink v. Engel, 18-MC-001, the previous Order of Dismissal was vacated and placed back on the Agenda for reconsideration. Accordingly, the Chair will entertain a Motion as follows from the floor:
Pursuant to KRS 61.810(1)(c) and (j), the Kentucky Open Meetings Act, Commissioner Oyler moved that the Commission will retire into closed, executive session, and stated the following specific justification under the Open Meetings Act for this action:
This notice complied with the procedural requirements of KRS 61.815(1)(a) by citing the provisions relied upon (KRS 61.810(1)(c) and (j)), stating the reason for the closed session (reconsideration of a complaint), 2 and identifying the general nature of the business (Complaint 18-MC-001).
Mr. Fink complains that the Commission did not, as part of the notice, cite Section 6.8 of its own rules and regulations (which describes the Commission's process of meeting to consider an ethics complaint). This type of specificity is not required under KRS 61.815(1)(a), which requires no citations other than the authorizing provision of KRS 61.810. Therefore, we find no violation of KRS 61.815(1)(a).
As an additional matter, Mr. Fink refers to an anonymous hearsay statement supposedly made by "a metro council spokesperson" to a news reporter, which he claims indicated "that no discussion was going to take place" in the closed session. We broadly construe Mr. Fink's allegation as an argument that the Commission did not properly invoke KRS 61.878(1)(j), which authorizes closed sessions for "[d]eliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present."
It is well established that the "deliberations" exception to the Open Meetings Act applies to discussions by a quasi-judicial body at its initial stages of considering a complaint. 05-OMD-017. "While any motion and vote to take action on a complaint or grievance must occur in open session, preliminary discussions by a quasi-judicial body at the 'charging' stage may take place in closed session under KRS 61.810(1)(j)." 09-OMD-188. Therefore, we find that the Commission's closed session to discuss the ethics complaint was authorized under the Act. 3
To the extent that Mr. Fink argues that nothing of substance was actually said or done in the closed session, he fails to allege a violation of KRS 61.810(1). 4 He appears to argue, however, that the October 18 closed session discussion concerning his ethics complaint was "not a proper reconsideration" because its intent was to cure an Open Meetings Act violation rather than to reach a different result. We are not concerned, in the context of an open meetings appeal, with the details or motivations of the Commission's deliberations, but only with whether they related to the matter specified in its public notice.
The Commission is required under its own rule 6.8 (cited by Mr. Fink) to "meet and consider the [ethics] complaint, response, and other information" it has received, in order to decide whether to "continue its investigation; determine whether the facts alleged constitute a violation of the Ordinance; or determine whether a Hearing should be held concerning the allegations in the complaint." 5 After vacating its prior decision, the Commission was thus obliged to repeat its mandatory procedural steps. Furthermore, according to the draft minutes, "[t]he Chairman [after the closed session] advised that all new additional information submitted from the parties had been considered" in regard to the ethics complaint. Nothing in the record indicates that any discussions in closed session fell outside the proper scope of deliberations under KRS 61.810(1)(j). Accordingly, we find no substantive violation of the Open Meetings Act.
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 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