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 Meade County Solid Waste and Recycling Board violated the Open Meetings Act by discussing in a closed session at its June 12, 2003 meeting matters not publicly announced prior to convening that closed session. For the reasons that follow, we find that the Board's actions violated KRS 61.815(1)(d).
On June 13, 2003, Meade County Messenger Editor Pat Bowen submitted a written complaint to Board Chairman Brad Bickett in which she alleged that the Board violated the Act when it went into closed session under authority of KRS 61.810(1)(f) to conduct a discussion that might lead to the discipline of an individual employee but, in addition to this topic, discussed "issues of contention with the Meade County Sheriff's Office" in the course of the closed session. As a means of remedying the alleged violation, Ms. Bowen proposed that the Board publicly apologize "at the next meeting for this illegal action."
In a letter dated June 16, 2003, Board Attorney Robert L. Heleringer responded to Ms. Bowen's complaint. He advised:
Because of a prior legal matter running long in my Louisville office, I was unavoidably late to the Board's meeting in Brandenburg. When I arrived, the Board had already gone into closed, executive session. I entered this meeting where a discussion of a disciplinary matter had already begun. I assumed that the closed session was called to discuss that matter and any legal matters pertaining to ongoing litigation. When the disciplinary matter was concluded, I then initiated a discussion of ongoing litigation where the Board, was and is, a party.
At the conclusion of the closed executive session, the Board reconvened in open session and, for the first time, I learned that the closed session had been called solely to discuss an employee matter. Rather than disrupt and delay the meeting further and ask for another closed session to re-discuss the litigation issues, I allowed the meeting to continue uninterrupted.
In closing, Mr. Heleringer noted that this dispute "could have been resolved during the public session of the Board meeting by the Messenger's representative attending said matter [sic], but was not so raised."
On appeal, Ms. Bowen asserts that because the Meade County Solid Waste and Recycling Board discussed matters during its closed session that were not publicly announced prior to convening that closed session, the Board violated KRS 61.815. She observes:
I refute Mr. Heleringer's allegation that "this matter could have been resolved during the public session of the board meeting by the Messenger's representative attending said matter, but was not so raised." My knowledge of what transpired in the closed meeting was not obtained until after the completion of the meeting. I then had the opportunity to converse with sources about the subjects discussed in the closed session. There was no way for me to have known during the meeting about the illegality.
Contrary to Mr. Heleringer's reply, the violation allegation is not about his behavior, but about the actions of the 109 Board members. They clearly went into closed session quoting KRS 61.810(1)(f) and came back from the closed session quoting the same reference. Mr. Heleringer was not present when they went into closed session, but he was present when they came out. The board members knew why they went into closed session, and if Mr. Heleringer was confused, they could, and should have informed him of his inappropriateness in bringing up a different subject.
We agree.
We begin with the proposition that has become axiomatic in this area of law, and that is found in the statement of legislative policy codified at KRS 61.800: "[T]he formation of public policy is public business and may not be conducted in secret. " Thus, at KRS 61.810(1), the General Assembly has 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 that may necessitate a public agency decision to discuss its business in closed session, the legislature has carved out a number of exceptions to this general rule of openness. These exceptions are codified at KRS 61.810(1)(a) and (l). Consistent with the goal of maximizing notice to the public, the legislature enacted KRS 61.815(1)(a) through (d) establishing specific requirements that must be observed as a condition of conducting a closed session. That statute provides:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
In construing the statute, Kentucky's courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."
E. W. Scripps Co. v. City of Maysville, Ky.App., 750 S.W.2d 450 (1990) cited in
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997).
With particular reference to KRS 61.815(1)(d), prohibiting closed session discussion of matters not publicly announced prior to convening the closed session, 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. In this case, the minutes of the [agency] do not reflect any mention of the "proposed or pending litigation" exception to the Open Meetings Act. The specific reason given to a closed session must be the only topic of discussion while the [agency] 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. We agree with the language written by then Court of Appeals Judge Johnstone and concurred in by the panel composed of Judges Schroder and Wilhoit that "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny. Unfortunately, we believe that is precisely how they were used in this case."
Floyd County Board of Education v. Ratliff, above at 924; see also 95-OMD-93 (Louisville/Jefferson County Revenue Commission violated KRS 61.815(1)(d) when it discussed search procedure for new employee following discussion of termination of employee in closed session conducted under authority of KRS 61.810(1)(f)). The facts giving rise to that case closely mirror the facts giving rise to this appeal. In Ratliff, a complaint was leveled against the Floyd County Board of Education after it went into closed session for the stated purpose of discussing "personnel" but proceeded to discuss matters not publicly announced including a school reorganization plan. The Court concluded that "[d]iscussions between Board members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct." Id. Continuing, the Court observed:
The mere fact that no objection was made by the public at the time the Board went into executive session cannot be used as an excuse for the improper discussion during the secret session. There is no requirement of public objection found in the statute.
Id. We believe that Ratliff is dispositive of the issues in this appeal.
The Meade County Solid Waste and Recycling Board acknowledges discussions in closed session of matters not publicly announced prior to convening that closed session. Based on the reasoning set forth in Ratliff, these discussions constituted a violation of the Open Meetings Act regardless of who initiated them and whether or not strict compliance with the law was administratively inefficient. As noted by the
Kentucky Supreme Court in Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Commission, Ky., 732 S.W.2d 884, 886 (1987), "the right of the public to be informed transcends any loss of efficiency." Consistent with the position announced by the Court in Ratliff, we further find that neither Mr. Bowen nor any member of the public in attendance was obligated to raise an objection at the time of the meeting, and the failure to do so "cannot be used as an excuse for the improper discussion . . . ." Id.
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.
Pat Bowen The Meade County Messenger 235 Main StreetP.O. Box 678Brandenburg, KY 40108
Robert L. HeleringerAttorney at Law7982 New LaGrange Road, Suite 1Louisville, KY 40222
Brad Bickett, ChairmanMeade County 109 Board(Meade Co. Solid Waste & Recycling750 Ready Mix RoadBrandenburg, KY 40108