Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Georgetown-Scott County Planning Commission violated the Open Meetings Act at its February 8, 2001, meeting when it went into executive session under authority of KRS 61.810(1)(c). For the reasons that follow, we find that the Planning Commission properly relied on the cited exception in conducting an executive session to discuss proposed or pending litigation.
On February 9, 2001, Georgetown News-Graphic publisher Mike Scogin submitted a complaint to Kelley Klepper, director of the Georgetown-Scott County Planning Commission, in which he alleged that the February 8 executive session, held for the stated purpose of "discuss[ing] pending litigation involving Whistlers Lane vs. Scott County Fiscal Court," was not authorized by KRS 61.810(1)(c) "because the Planning Commission is not a party to the lawsuit in question, and no current member of the Planning Commission is named as a party to the lawsuit. " As a means of remedying the alleged violation, Mr. Scogin proposed that the Planning Commission "publicly acknowledge in a letter to the editor of this newspaper and also at the next regular session of the Planning Commission that the Kentucky Open Meetings Law was violated." In addition, Mr. Scogin proposed that the Planning Commission "publicly pledge to carefully follow the law in the future."
In a response issued on February 9, Planning Commission attorney Charles M. Perkins denied the allegations in Mr. Scogin's complaint. He explained:
The closed session was held to discuss litigation related to Whistlers Estates and particularly the Homeowners' suit against the Scott Fiscal Court, Steve Austin, former planning director, Ira Gray, former Commission engineer and the developer. You are correct; the Commission is not a party to the suit at this time. As I stated on the record last night, the Commission is the agent of the Fiscal Court whose actions are contested in this suit. The suit names two of the Commission's employees as the individuals alleged to have committed specific negligent acts. This suit does not involve any act of the Fiscal Court. It is an action against the Fiscal Court on behalf of the Planning Commission for alleged acts by the Commission.
Reaffirming the Planning Commission's reliance on KRS 61.810(1)(c) as the exception authorizing its executive session, he indicated that in addition to the explanation offered at the February 8 meeting, other circumstances existed that justified the Planning Commission's actions. Specifically, Mr. Perkins advised:
. Although not currently named a party to the action, there is significant possibility, if not likelihood, that the Commission will be added as a party; and
. As requested by the homeowners last night and threatened by the Commission in the recent past, both civil and criminal action against the developer is an option under consideration by the Commission.
Mr. Perkins concluded that the Planning Commission's "nexus to pending litigation and to requested and threatened litigation satisfies the statute."
On February 13, Mr. Scogin renewed his complaint. Noting that the stated purpose of the closed session was the Whistlers Estates lawsuit, he maintained that "[t]he existing lawsuit between Whistlers Estates and the county does not fall within the exemptions for a closed meeting for the Planning Commission, which is not a party to the lawsuit [;] there is absolutely no reference or exemption offered in the Kentucky Open Meetings Law for 'agents' of any government agency." Moreover, Mr. Scogin asserted:
Discussion of any other matter, including "proposed litigation" would be a violation of Kentucky's Open Meetings law because that was not the stated intent of the closed session. As for your offer of "proposed litigation," for the closed session I cannot find such a reference in tapes of the Planning Commission's meetings, nor has our reporting shown such discussions. Therefore, this executive session violates KRS 61.810(1)(c).
Again, he requested that the Planning Commission remedy the alleged violations by acknowledging, both orally and in writing, its failure to comply with the Open Meetings Act. Having received no response to his renewed complaint, Mr. Scogin initiated this appeal on February 20.
In a supplemental response directed to this office following commencement of the appeal, Mr. Perkins elaborated on the facts giving rise to the Planning Commission's February 8 closed session. He stated:
During 1994 and 95, the Planning Commission reviewed and approved a final subdivision plat for Whistlers Estates. In or about June of 1995, the Commission engineer apparently inspected and approved the installation of the public improvements in that subdivision. He also approved a drawing of improvements to a bridge located on the private main road of the subdivision. Based upon the approval of the engineer, our planning director at the time released the bond securing the installation of the required improvements.
In May 2000, the homeowners in that subdivision appeared before the Commission asking for enforcement of the plat requirements and questioning why the Commission and its employees approved the inadequate facilities. Based upon that meeting, Commission staff inspected the facilities and confirmed the deficiencies. Following the Commission directive, I wrote the developer, Andy Adams. In that letter I threatened civil and criminal action to secure the corrections.
I did not locate Adams until several months later. We arranged a meeting on site to examine the deficiencies. Acting upon the understanding I thought we reached at that meeting, I wrote the October 24, 2000 letter. His attorney's response demonstrated the lack of any actual understanding.
Suit was filed shortly thereafter. Plaintiff's counsel did not name the Commission. The complaint did name two of the Commission's former employees, the engineer and director. All of the allegations in the complaint involved actions of the Commission or its employees.
At the February 8 Commission meeting, the homeowners appeared and questioned why the Commission and I, individually, had not taken the enforcement action we had promised last May. They specifically asked why we had not filed civil or criminal actions against the developer. Due to the pending litigation, I advised the Commission that we could not discuss the matter in open session. The motion to enter closed session was to discuss the pending litigation. Our closed discussion included the pending litigation as alleged in the complaint, the factual background, the likelihood the Commission will later be named as a defendant, possible avenues of settlement and potential litigation the Commission might yet file against the developer.
The Commission should have been a named defendant in the suit. I anticipate that the Commission will be added as a party unless the matter is settled earlier. Two Commission employees are already parties. The Commission has responsibility in this suit arising out of our employees being defendants. The Commission performed all of its actions in this matter as agents of the Fiscal Court which is a party. Ultimate exposure in these claims lies with the Commission rather than the County.
Mr. Perkins furnished this office with copies of the civil complaint filed in the Scott Circuit Court, and two referenced letters directed to the developer, to substantiate the Planning Commission's position that "[t]he public knew the subject matter of the pending litigation, the identity of the Commission's former employees, the potential of the Commission being specifically named a party, and much about the legal options open to the Commission." Notice to the public of the reasons for the closed session beyond this, Mr. Perkins concluded, "would have obviated the need for the closed session and precluded meaningful advice of counsel."
Respectfully, we disagree with Mr. Scogin's analysis, and affirm the Georgetown-Scott County Planning Commission's actions. It is the opinion of this office that the Planning Commission gave "specific and complete notification in the open meeting of any and all topics which . . . [were] discussed during the closed meeting, " and that the "specific reason given for [the] closed session" was the only topic of discussion in that closed meeting.
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997).
Fundamental to an analysis of the propriety of a public agency's conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:
The basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
As a means of implementing this policy, at KRS 61.810 the General Assembly declared:
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]
Recognizing that there are extraordinary circumstances which may warrant a public agency in conducting its business in a closed session, the General Assembly carved out a number of exceptions to this general rule. Among those meetings which are excepted from the general rule of openness are meetings involving "discussions of proposed or pending litigation against or on behalf of the public agency. " KRS 61.810(1)(c). This, along with the other eleven exceptions to the Open Meetings Act "must [be] narrowly construe[d] and appl[ied] . . . so as to avoid improper or unauthorized closed, executive or secret meetings." Floyd County Board of Education at 923.
In Floyd County Board of Education v. Ratliff, the Kentucky Supreme Court construed KRS 61.810(1)(c), opining:
[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 relationships 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. See Jefferson County Board of Education v. The Courier-Journal, Ky. App., 551 S.W.2d 25 (1977). As properly noted in Jefferson County Board of Education, supra, the matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of "everything tangential to the topic."
Floyd County Board of Education at 923, 924.
Numerous opinions of the Attorney General support this view. In OAG 78-227, this office held that KRS 61.810(1)(c) is intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to litigation, is threatened with litigation, or anticipates initiating litigation on its own behalf. We have warned that the terms "proposed or pending" should not be so broadly construed as to authorize a closed session when the possibility of litigation is remote. OAG 84-240; OAG 91-141. Applying these general principles to a series of appeals arising under KRS 61.846(2), the Attorney General has held that the Highland Heights City Council properly conducted a closed session to discuss strategy, tactics, and the possible settlement of condemnation proceeding against the city (92-OMD-1728); that the board of trustees of the Louisville Firefighters Pension Fund improperly conducted a closed session to discuss litigation which did not involve the Pension Fund but instead involved the similarly situated Policemen's Pension Fund (93-OMD-110); that the Lexington-Fayette Urban County Government improperly conducted a closed session to discuss a dispute between the city and state concerning property known as the "Ben Snyder Block" (95-OMD-57); and that Kentucky Employers' Mutual Insurance Authority properly conducted a closed session to discuss whether to appeal an open records decision of the Attorney General, but improperly made the final determination to appeal the decision in the closed session (97-OMD-96).
Based on these decisions, the following guidelines have been established:
When the public agency has become a party plaintiff or defendant in a lawsuit, when a public agency has been threatened with litigation, or when the chance of litigation involving that agency is more than a remote possibility, the agency can then legally and properly invoke the exception set forth in KRS 61.810(1)(c). The public agency can at that time discuss in a closed session such matters as strategy, tactics, possible settlement and other matters pertaining to that case or that anticipated or probable case.
93-OMD-119, p. 3, 4; 99-OMD-6 (Bowling Green-Warren County Regional Airport Board properly relied on KRS 61.810(1)(c) to conduct a closed session discussion of threatened litigation by airport tenants to challenge Board's refueling policy, and litigation the Board was likely to initiate against its insurer over disputed storm damage); compare 98-OMD-105 (Bourbon County Fiscal Court failed to make sufficient showing that it properly conducted closed session to discuss pending litigation) .
Resolution of 98-OMD-105, cited above, turned on the Bourbon County Fiscal Court's failure to "shed any light on the general nature of the proposed or pending litigation anticipated or the immediacy of the threat of litigation." 98-OMD-105, p. 6. In that decision, we observed:
[A]n agency is authorized to discuss its preparation, strategy, or tactics relative to the threatened litigation in a closed session pursuant to KRS 61.810(1)(c), but that provision does not authorize it to maintain absolute secrecy as to the general nature of that litigation. How else can the public, this office, and the courts evaluate the propriety of the agency's actions?
It is for this reason that the Supreme Court has required public agencies to cite "the specific exception contained in the statute which is relied upon in order to permit a secret session . . . [and to give] specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. " Floyd County Board of Education at 924. Short of disclosing the details of the closed session discussion, and thus defeating the purpose for which the closed session was called, the Planning Commission cited the applicable exception and gave specific and complete notification of the topic to be discussed in that session. We believe that the notice given, along with the description of the business to be discussed, was "couched in sufficiently specific terms to enable the public to assess the propriety of the agency's actions." 00-OMD-64, p. 6.
Prior to going into closed session at its February 8 meeting, the Georgetown-Scott County Planning Commission invoked KRS 61.810(1)(c), and explained that the closed session discussion would center on the Whistlers Estates litigation and the homeowners' suit against the Scott County Fiscal Court and two former members of the Planning Commission. Mr. Perkins described, in sufficient detail, the nature of the underlying litigation and the Commission's potential liability. Although he did not describe with equal specificity the nature of the litigation that the Commission might initiate against the developer, these matters were implicit in the discussion of strategy and tactics relative to the very real threat of litigation against the Commission. Contrary to Mr. Scogin's apparent belief, a lawsuit need not be pending by or against a public agency before it can properly rely on KRS 61.810(1)(c) so long as there have been "direct suggestions of litigation conditioned on the occurrence or nonoccurrence of a specific event." Here it appears that the Planning Commission will be named as a party in the pending legal action, and/or will initiate legal action against the developer, if settlement is not reached. KRS 61.810(1)(c) authorized the closed session, and specific and complete notification of the topic to be discussed was given in open session. The Open Meetings Law does not require more.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Mike Scogin1481 Cherry Blossom WayGeorgetown, KY 40324
Kelley KlepperPlanning Director Georgetown-Scott County Planning Commission101 East Main StreetP.O. Box 677Georgetown, KY 40324
Charles M. PerkinsGeorgetown City Attorney100 Court StreetP.O. Box 677Georgetown, KY 40324