Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by Henry D. Stone, President and General Manager of Franklin Favorite-WFKN Radio, from the written response he received from Bill Gentry, Mayor of the city of Franklin, in connection with a complaint filed under the Open Meetings Act.
In a letter to the mayor, dated September 13, 1994, Mr. Stone complained of three violations of the Open Meetings Law by the city. Two of those matters have been raised in the subsequent appeal to this office and those are the only two issues which will be considered in this decision.
Mr. Stone stated that the city commission met in a special meeting on August 31, 1994, and discussed in open session the only item listed in the written notice of the special meeting. The notice provided, "There will be a special called meeting of the Franklin City Commission on Wednesday, August 31, 1994 at 3:PM in the Commission Chambers to discuss alternatives of wastewater treatment for Cagle's processing plant. "
After discussing the item on the agenda, Mr. Stone said the Commission went into an executive session to hear an update on Cagle, stating "it could do so to discuss an industrial prospect." In Mr. Stone's opinion, Cagle is not still an industrial prospect because it made a formal announcement weeks ago that it would locate in the area and it has purchased property in the area. In addition, Mr. Stone maintained that the commission could not discuss an industrial prospect at a special meeting when no mention of such a matter was made in the notice of the special meeting.
In a letter to Mr. Stone, dated September 16, 1994, the mayor said the city commission met on August 31, 1994, and conducted discussions concerning a treatment lagoon for an industrial prospect. Subsequently the city went into executive session under the "industrial prospect" provision of KRS 61.810. The executive session discussion involved the same matters contained in the agenda and were related to the "industrial prospect" and the proposed lagoon.
The mayor maintained that the city has discussed numerous incentives with this particular firm but has not reached an understanding as to which utility services and the amount of such services it will supply. Unless understandings are reached relative to utility services this firm may not locate in the city or county even though it has purchased land in the area, according to the mayor.
Mr. Stone's letter of appeal was received by this office on September 21, 1994. He questioned the validity of the executive session in view of the agenda set forth in the notice of the special meeting. He is also concerned about a closed session with an "industrial prospect" when that firm publicly announced some time ago with the Governor and other officials present it was moving into the area. In addition, he has asserted that the public is entitled to know what is being discussed in relation to municipal commitments that might be made to the firm.
In connection with "special meetings," KRS 61.823 (3) provides for a written notice of the special meeting. "The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice. "
The notice of the special meeting for August 31, 1994, had only one agenda item and that was the discussion of "alternatives of wastewater treatment for Cagle's processing plant. " The city commission, whether in open or closed session, could not legally discuss anything else but that agenda item and if it did so it violated the Open Meetings Act.
What formerly appeared among the exceptions to open and public meetings as KRS 61.810 (7) was an exemption for "Meetings between public agencies and industrial prospects." As a result of the 1992 amendments to the Open Meetings Act (1992 Acts, Chapter 162, HB 16), KRS 61.810 (7) was repealed and the phrase "industrial prospects" was stricken. What was substituted for KRS 61.810 (7) is what now appears as KRS 61.810 (1) (g) and which provides as one of the exceptions to open and public meetings:
Discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion, or upgrading of the business [.]
Under the new provision a meeting between the city and a representative of a business entity or a meeting of the city commission pertaining to a specific proposal could only be closed if an open and public discussion would jeopardize, among other things, the locating of the business in the area.
Since in the situation under review the business involved has already publicly announced at a ceremony attended by the Governor and other officials that it is locating in the area, the city cannot invoke KRS 61.810 (1) (g) to close a meeting pertaining to discussions concerning that firm locating in the area.
Either party to this appeal may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846 (4) (a) and KRS 61.848. Pursuant to KRS 61.846 (5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.