Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in these consolidated appeals is whether the Russellville City Council violated the Open Meetings Act at its November 12, 2002, special meeting when it went into closed session under authority of KRS 61.810(1)(c). For the reasons that follow, we find that although the Russellville City Council violated KRS 61.846(1) in failing to respond to the open meetings complaints it received, the council did not violate the Act to the extent that its closed session discussion focused exclusively on "matters commonly inherent to litigation, such as preparation, strategy or tactics. " Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923, 924 (1997). To the extent that members of the public in attendance may have been confused or misled by the meeting's agenda, and statements made by a council member or council members collaterally to and in the course of the meeting relative to the subject of the closed session discussion, we find no substantive violation of the law, but encourage the council to exercise greater caution in identifying with precision and specificity the reason for its closed sessions.
On November 13, 2002, Daily News reporter Robyn L. Minor submitted a written complaint to the Russellville City Council in which she alleged that the council violated the Open Meetings Act at its November 12 special meeting by conducting an unauthorized closed session discussion of Electric Plant Board personnel. She maintained:
EPB employees are not city employees, nor are EPB . . . members city employees. Even so, it was believed that the discussions concerned general matters pertaining to the EPB rather than specific issues that could lead to the hiring, discipline, or firing of an employee. The attorney general has consistently held that general personnel matters cannot be discussed in closed session. And since the city has no power to "discipline or fire" EPB employees the exemption does not apply.
In addition, Ms. Minor challenged the council's reliance on the litigation exception to the Open Meetings Act, questioning what grounds for litigation the council might have. On November 14, 2002, News-Democrat & Leader publisher Randall E. Fuqua submitted a similar written complaint to the council alleging that discussion "of personnel matters in general terms, and more specifically EPB employees, including board members, who are not city employees, is a direct violation of the Open Meetings Act. " As a means of remedying the alleged violations, the News-Democrat & Leader proposed that all future discussions of public business be conducted in a public forum, and that the council otherwise conform its conduct to the requirements of the Open Meetings Act. Neither the Daily News nor the News-Democrat & Leader received a response from the Russellville City Council, prompting each to initiate an open meetings appeal.
In correspondence directed to this office following commencement of these appeals, attorney David F. Broderick responded on behalf of his client the Russellville City Council. He advised:
The meeting of the Russellville City Council in question occurred on Tuesday, November 12, 2002. The undersigned had been contacted by the City Council prior to the meeting and had agreed to represent same in possible litigation against certain members of the City of Russellville Electric Plant Board. While an investigation was ongoing then, and currently is, the city council suspected certain fiduciary duties and city ordinances and policies may have been breached by members of the Electric Plant Board. Those suspicions remain today. Again, while it would be preliminary to speak to the merits or facts of the matter at this stage, it suffices to say that the city council believes it may have a right to recover from certain members of the Electric Plant Board monies that may have been misappropriated. The possibility of bringing and maintaining such a civil action was the city council's sole reason for retaining the undersigned.
At the November 12, 2002 meeting a formal vote was held on the subject of my retention. After that vote, I advised my client that any discussions involving this proposed litigation could, and should, be discussed in closed session. This obviously was met with much indignation and distain [sic] from individuals present, including members of the media, Ms. Minor and Mr. Fuqua. Nonetheless, the council moved to meet in closed session and the motion was passed unanimously. It was unequivocally and explicitly stated that the reason for the closed session was the discussion of proposed litigation.
While in the closed session, my client and I discussed nothing but this proposed litigation. This was, in effect, my first opportunity to speak to the entire council about the matter, to share with them my thoughts, impressions and insight. While I obviously cannot speak in more detail due to attorney-client privilege, it should be noted that nothing else was discussed and no final decisions by the council were made on the matter. Indeed, the closed session did not conclude with a decision to institute any litigation, nor did it dismiss that possibility.
Mr. Broderick disputed the complainants' "characterization of this matter as a 'general personnel matter,'" but indicated that he would "address KRS 61.810(1)(f) no further as that was not the principal basis for the closed session. " Acknowledging that statements made by at least one council member about possible indictments of EPB members were clearly in error and may have spawned confusion, Mr. Broderick nevertheless offered his assurances that all formalities for conducting the closed session were strictly observed, 1 and that "the council's stated and actual reason for meeting in closed session was the discussion of proposed litigation on behalf of the city council. " We find no violation of the Open Meetings Act other than the procedural violation noted above.
That procedural violation consisted of the council's failure to respond in writing, and within three business days, to the Daily News' and News-Democrat & Leader's open meetings complaints. KRS 61.846(1) provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. 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. . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Although the Daily News' complaint was erroneously addressed to the city clerk rather than the mayor, and initially at least did not propose a remedy for the alleged violation, the News-Democrat & Leader's complaint conformed in every respect to the requirements found in KRS 61.846(1), and the council offers no explanation for its failure to respond to either complaint. For these reasons, we find that the council's inaction constituted a violation of KRS 61.846(1).
Turning to the substantive issue in this appeal, we find that the closed session discussion of proposed litigation against members of the Electric Plant Board was authorized by KRS 61.810(1)(c). That exception permits an agency to conduct closed session "discussions of proposed or pending litigation against or on behalf of the public agency. " 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 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. See Jefferson County Board of Education v. The Courier-Journal, Ky.App., 551 S.W.2d 25 (1977).
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 82-240; 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-119); 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, pp. 3,4; see also, 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) ; 01-OMD-130 (Meade County Fiscal Court improperly relied on KRS 61.810(1)(c) as the basis for closed session discussion of case in which it was neither a party plaintiff nor a party defendant); 01-OMD-152 (Martin County Fiscal Court's closed session discussion on the subject of retaining legal counsel was not authorized by KRS 61.810(1)(c)).
As narrowly construed by the Kentucky Supreme Court in Floyd County Board of Education v. Ratliff, above, "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 924. "The open meetings litigation exception," the Court has further noted, "addresses attorney-client confidentiality in meetings . . . ." Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469, 473 (1997). Based on Mr. Broderick's description of the topics discussed in the course of the Russellville City Council's closed session, to wit, proposed litigation against members of the Electric Plant Board to recover money that may have been misappropriated, we find that the discussion fell squarely within the parameters of KRS 61.810(1)(c). Accordingly, we conclude that the council did not violate the Open Meetings Act in conducting the closed session.
In addition to confusing comments made by one or more council members, the agenda for the council's November 12 special meeting discloses an additional reason for the public's apparent belief that the closed session discussion focused on personnel issues. Item V.b. of the agenda reads as follows:
Executive Session for reasons of pending litigation and personnel
Although we were unable to obtain a copy of the tape or minutes of the meeting, Mr. Broderick assures us that the only exception relied upon at the meeting, and for which the formalities codified at KRS 61.815(1)(a) and (b) were observed, was KRS 61.810(1)(c), the litigation exception. Thus, if the council erred at all, it erred in identifying too many exceptions for its closed session in the agenda for the meeting, but not, we trust, in the formal proceedings at its November 12 meeting.
On this particular issue, the Kentucky Supreme Court has observed:
KRS 61.815 provides 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 during the closed meeting . . . The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. See Fiscal Court v. Courier Journal and Louisville Times Co., Ky., 554 S.W.2d 72 (1977); Jefferson County Board of Education, supra, at 28. 2
Floyd County Board of Education at 925. Based on the Court's holding in Floyd County Board of Education v. Ratliff, we encourage the council to exercise greater caution in preparing its agenda, and in making comments in the public forum which might lead to confusion, but 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Robyn L. Minor Daily News 813 College StreetBowling Green, KY 42102-9012
Randall G. Fuqua News-Democrat & Leader 120 Public SquareP.O. Box 270Russellville, KY 42276
Christopher T. DavenportBroderick & Thornton921 College St. - Phoenix PlaceP.O. Box 3100Bowling Green, KY 42102-3100
David F. BroderickBroderick & Thornton921 College St. - Phoenix PlaceP.O. Box 3100Bowling Green, KY 42102-3100
Shirlee Yassney, MayorCity of Russellville168 South Main StreetRussellville, KY 42276
Footnotes
Footnotes
1 This office made two attempts to obtain a copy of the tape or minutes of the challenged meeting, pursuant to KRS 61.846(2), to substantiate the council'' position. Neither was available before the date this decision was required to be issued.
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2 KRS 61.815(1)(a) through (d) thus provides:
(1) [T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(a) Notice shall be given 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;
(b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
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