Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Graves County Board of Education violated the Kentucky Open Meetings Act by going into closed session during the regular meeting held on April 10, 2007, for the purpose of discussing consolidation of the Lowes and Fancy Farm elementary schools and related tax issues. Although the conflicting evidence of record precludes this office from conclusively resolving that issue, the weight of the evidence supports the Board's account of the events in question and the Board concedes that any such discussion would constitute a violation thereby rendering further analysis unnecessary; however, the Board violated KRS 61.815(1)(a) in failing to strictly observe the requisite formalities before going into closed session on April 10, 2007. Because the Board implicitly relied upon KRS 61.810(1)(b) as the basis for going into closed session but has not demonstrated how "publicity would be likely to affect the value" of the specific piece or pieces of property to be acquired, the actions of the Board were deficient in this regard as well.
By letter directed to Brady M. Link, Superintendent, on May 2, 2007, Todd Hayden submitted a complaint alleging that a violation of the Open Meetings Act occurred when the Board "met in executive session on April 10, 2007 to discuss consolidation of Fancy Farm and Lowes elementary schools and the tax issues associated with their options, as evidenced by School Board Chairman Lunele Leonard's email response," a copy of which Mr. Hayden enclosed. Quoting the language of KRS 61.810(1), Mr. Hayden argued that consolidation of the schools "is public business and does not fall under the exceptions." As a means of remedying the alleged violation, Mr. Hayden proposed that the Board conduct a "public discussion concerning the issue of consolidating the two elementary schools" and fully disclose "the tax implications of each alternative."
In a timely written response, David L. Hargrove, Attorney, Graves County School Board, agreed with Mr. Hayden "that if the tax issues described by Dr. Leonard in her e-mail were discussed in closed session, then there would be a violation of the Open Meetings Act. " However, Mr. Hargrove clarified that "prior to the meeting, Dr. Leonard received independent advice and these issues about which you complain were not discussed or addressed during the closed session. " According to Mr. Hargrove, those in attendance confirmed that "the only deliberation that occurred was the future acquisition of real property by the District upon which a consolidated school could be constructed." Belatedly invoking KRS 61.810(1)(b), Mr. Hargrove further asserted that issue "is an exception to the Open Meetings Act. " Without further elaboration, Mr. Hargrove referenced the language of that exception, noting that the "Board believed that if any potential purchase of land was discussed in an open meeting, the value of the specific piece of property would be materially affected."
By letter dated May 20, 2007, but received by this office on May 29, 2007, Mr. Hayden initiated this appeal from the Board's disposition of his request. Acknowledging there "is [no] way of knowing for sure what is discussed in closed executive session [,]" Mr. Hayden correctly argues that a public agency such as the Board "is supposed to make a motion in a regular meeting to say which one of the exceptions" is being relied upon as the basis for the session; the Board "did make a motion to go into executive session but did not say which of the exceptions they were going to discuss." Because the Board "had never had any discussion on consolidation or the tax implications at any of the public board meetings prior to April 10th 2007," since the plan to consolidate was announced to the media in February, Mr. Hayden believes "the only time it could have possibly been discussed was in closed meetings such as the one on April 10th and had Dr. Leonard [known] that it was against the law she would not have told [him] this in the e-mail." In conclusion, Mr. Hayden notes the meeting in question was held prior to 07-OMD-100 being issued by this office so the Board was "not aware that all [their] closed meetings were illegal."
Upon receiving notification of Mr. Hayden's appeal from this office, Mr. Hargrove responded on behalf of the Board. Since the meeting in question was held during Spring Break, Mr. Hargrove did not attend. To his knowledge, "the only parties present when the [B]oard went into executive session were the Board members themselves and the Superintendent." Each of those individuals has "attested that the discussions about which Mr. Hayden complains did not occur." Mr. Hargrove "knows of no other way to confirm this other than to submit Affidavits of those in attendance. " Attached to his response are the original affidavits of Superintendent Link and the five Board members in attendance on the date in question, all of which read, in relevant part, as follows:
1. That I am a member of the Graves County School Board.
2. That I was in attendance at the School Board meeting held at the Graves County School Board Office on April 10, 2007. I was present at the regular meeting and at the Executive Session.
3. That only the Board Members and Superintendent were present at this session.
4. This is my affirmation that no discussion concerning the implications of the consolidation of Fancy Farm and Lowes Elementary occurred during the Executive Session.
5. That the only discussion in closed session concerned the potential purchase of real estate for a consolidated school, an issue of which we believe proper to discuss in closed session.
Our analysis necessarily begins with a review of the fundamental proposition codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 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 by law shall be strictly construed.
Recognizing that extraordinary circumstances occur which might justify a public agency conducting public business during a closed session, the General Assembly created a number of exceptions to this general rule, which are codified at KRS 61.810(1)(a)-(n). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a)-(d), pursuant to which:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
In construing KRS 61.815, Kentucky's highest 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."
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing
E.W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990). Consequently, "the courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id. Both the General Assembly and the judiciary have thus demonstrated their commitment to "open government openly arrived at." 00-OMD-113, p. 2 (citation omitted).
As evidenced by the following, decisions issued by the Attorney General over the years relative to compliance with KRS 61.815(1) are consistent with
Floyd County Board of Education v. Ratliff, supra, in which the Kentucky Supreme Court held that the Board failed to give proper notice in open session of the matters to be discussed in a closed session. Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the Court reasoned:
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 Board do not reflect any mention of the "proposed or pending litigation" exception to the Open Meetings Act. 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. 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."
Discussions 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.
Floyd County Board of Education at 924 (emphasis added).
Of particular significance here, the Attorney General has observed the following on the issue of strict compliance 1 with KRS 61.815(1)(a):
It is the opinion of this office that the Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed.
00-OMD-64, p. 6. Referring to language employed by the Supreme Court in Floyd County Board of Education, supra, this office concluded:
In view of the disparate nature of the [fourteen] exceptions, there can be no bright line test for determining if specific and complete notification has been given. However, consistent with the right of the people to "remain[] informed so that they retain control over the instruments they have created" (1974 HB 100, Preamble), we believe that the notification must include both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in sufficiently specific terms to enable the public to assess the propriety of the agency's actions.
Id. (Emphasis added).
Although the record on appeal does not contain a copy of the minutes from the Board meeting held on April 10, 2007, Mr. Hayden acknowledges that a motion was made (and presumably carried by a majority vote) during the open meeting before the Board went into closed session but contends that an exception was not specified; the Board neither disputes this assertion nor explains this omission. As consistently recognized by this office, "a notification which does not include a statement of the specific exception relied upon to conduct a closed session, a description of the general nature of the business to be discussed in, and the reason(s) for, the closed session is inadequate." 03-OMD-221, p. 4; 02-OMD-200; 01-OMD-181; 00-OMD-64. Based upon the evidence of record, this office must conclude that the Board violated the Open Meetings Act in failing to strictly observe the requirements of KRS 61.815(1)(a) prior to conducting the closed session at issue.
In light of this determination, the question becomes whether the Board erred in discussing the consolidation of the Lowes and Fancy Farm elementary schools. Although Mr. Hayden argues "the only time it could have possibly been discussed" was during closed sessions like the one held on April 10, 2007, each member of the Board as well as the Superintendent have expressly denied that such a discussion occurred in sworn affidavits. In other words, the conflicting facts of this appeal do not lend themselves to a conclusive resolution of this question; however, the law is unambiguous. More specifically, KRS 61.810(1) provides that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times. . . ." A meeting is defined as "all gatherings of any kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." KRS 61.805(1).
In 98-OMD-94 and 00-OMD-114, the public agencies whose "secret" meetings were challenged had acknowledged that meetings occurred but defended the meetings on various grounds; further, the complainants personally observed the "secret" meetings in progress. Here, the Board Members and Superintendent who attended the closed session and purportedly discussed the consolidation have flatly denied that such a discussion occurred. Under these circumstances, the Attorney General is unable to find that a violation was committed although the Board concedes that if such a discussion had taken place it would constitute a violation of the Act. See 00-OMD-142 (issue concerning actual delivery of meeting notice to city commissioner is factual in nature and the Attorney General cannot resolve a factual dispute in the context of an open meetings appeal); 00-OMD-169 (issue of whether a member of the public voluntarily left or was forcibly removed from the meeting was a factual issue which could not be resolved by Attorney General since evidence was conflicting); 03-OMD-125 (Attorney General is required to review a complaint and response in reviewing an Open Meetings appeal and issue a written decision per KRS 61.846(2); these decisions involve application and interpretation of the Act or questions of law as opposed to factual disputes which this office cannot resolve); see also 99-OMD-167; 99-OMD-203. As in the cited appeals, the record is devoid of hard evidence to support the claimed violation. That being said, this office reminds the Board to avoid having discussions which do not fall within the parameters of one or more of the exceptions codified at KRS 61.810(1).
In responding to Mr. Hayden's request, Mr. Hargrove explained that according to those in attendance, "the only deliberation that occurred" was related to "the future acquisition of real property by the District upon which a consolidated school could be constructed." Although the Board apparently believed "that if any potential purchase of land was discussed in an open meeting, the value of the specific piece of property would be materially affected[,]" the Board not only failed to cite the specific provision relied upon, as previously indicated, but has not demonstrated on appeal that publicity would be likely to affect the value of a specific piece of property as required to successfully invoke KRS 61.810(1)(b). With regard to application of this provision, the analysis contained in 04-OMD-127 (agency failed to provide sufficient proof to successfully invoke KRS 61.810(1)(b)) is controlling; compare 05-OMD-032 (applying same analysis but concluding that agency made the requisite showing); a copy of each decision is attached hereto and incorporated by reference. Because the Board has not satisfied its burden of proof relative to KRS 61.810(1)(b), nor was the closed session at issue authorized by another provision, the closed session was improper.
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.
Todd Hayden
Brady M. Link, Jr., SuperintendentGraves County Board of Education2290 St. Rt. 121 N.Mayfield, KY 42066
David L. HargroveHargrove & FosterP.O. Box 315Mayfield, KY 42066-0315
Footnotes
Footnotes
1 In 00-OMD-114, this office declined to view a violation of the Open Meetings Act as "technical." At page 3 of that decision, the Attorney General reasoned that "[t]he Act itself does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely 'technical.'" See also 03-OMD-221.