Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Nortonville City Council violated the Open Meetings Act when it failed to observe the requirements for conducting a closed session at its August 4, 2008, meeting. For the reasons that follow, we find that the council's failure to comply with KRS 61.815(1) constituted a violation of the Act, that the Act "does not recognize a class of violations of lesser gravity than the remaining class of violations, and therefore capable of being dismissed as merely 'technical'" 1 and that the Act does not contemplate the exclusion of the public from a public meeting, absent a statutorily recognized exception permitting a closed session, as a means of maintaining order at the meeting.
On August 6, 2008, Delbert Powell submitted a written complaint to Nortonville Mayor James Noel in which he asserted that the city council engaged in improper conduct at its August 4, 2008, meeting when it went "into a closed session without a vote." As a means of remedying the alleged violation, Mr. Powell proposed that the "matters that were discussed at the improperly called closed session" be discussed in an open session and that "[a]ny action taken as a result of the improperly called session . . . be declared null and void."
By letter dated August 12, 2008, John C. Whitfield responded to Mr. Powell's complaint on behalf of the Nortonville City Council. Mr. Whitfield advised:
I have discussed this matter with Mayor Noel and believe that any actions taken by Mayor Noel to go into closed session was done based on the peculiar circumstances of the meeting at the time, and were done with the utmost of good faith by Mayor Noel. Although you are correct that the decision to go into closed session by Nortonville must be accomplished with a vote, any failure to do so by Major Noel was inadvertent at best, and not done with any attempt to circumvent Kentucky law.
In closing, Mr. Whitfield stated that Mayor Noel had "agreed to discuss at the next regular meeting in open forum those nonprivileged matters that may have been discussed at the August 4, 2008, meeting." On August 14, 2008, Mr. Powell initiated this appeal.
In supplemental correspondence to this office following commencement of Mr. Powell's appeal, Mr. Whitfield elaborated on the council's position. He explained:
The circumstances that led the council to go into closed session were partly of the making of Mr. Powell himself who caused a disturbance in the meeting mandating the corrective action taken by Mayor Noel to bring order to this disruption. Mayor Noel took the action that he deemed appropriate which was to clear the room and restore order. Being that the Mayor has in the past been a victim of an assault by the brother of Mr. Powell, in the presence of Mr. Powell as well, it is reasonable that the Mayor needed to take action to bring order to a most difficult situation.
The actions of Mayor Noel may have been in technical violation of KRS 61.815 as no vote was taken to go into closed session at this meeting. However, even though this technical violation may have occurred, Mayor Noel took reasonable action he thought appropriate at the time. This was explained to Mr. Powell in my letter of August 12, 2008, coupled with an offer to explain at the next regular meeting those non-privileged matters that were discussed at the August 4, 2008 meeting.
We find that the Nortonville City Council's failure to observe the requirements for conducting a closed session violated KRS 61.815(1).
KRS 61.815(1)(a) through (d) establish conditions for conducting closed sessions. These statutes provide:
(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 majority vote in open, public session.
(c) No final action may be taken at a closed session; and
(d) No matter may be discussed at a closed session other than those publicly announced prior to convening the closed session.
With reference to these provisions, the Attorney General has opined:
[T]he Open Meetings Act . . . 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. In construing KRS 61.805 to 61.850, the Supreme Court observed:
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1987). With specific reference to KRS 61.815, the Court declared that prior to going into closed session, the public agency "must state the specific exception contained in the statute which it relied upon," and give "specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting." Id. at 924. In view of the disparate nature of the twelve 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.
00-OMD-64, p. 6; see also 02-OMD-166 and 02-OMD-200. KRS 61.815 is thus aimed at promoting the "express purpose" of the Open Meetings Act, namely, "to maximize notice of public meetings and action." Id.; see also 94-OMD-78 (holding that agencies which are not exempt per se from the requirements of the Open Meetings Act must strictly observe these formalities before going into closed session) ; 95-OMD-92 (holding that KRS 61.815 "clearly require(s) that certain things be done in a regular, open, and public session before the public agency can go into a closed or executive session) . The Nortonville City Council failed to comply with any of the requirements codified at KRS 61.815(1) in conducting its August 4 meeting.
The Open Meetings Act recognizes no exception to these statutory requirements because there is "a disturbance in the meeting." Suspension of the proceedings until order is restored may be necessary on those rare occasions when an attendee or attendees engage(s) in conduct so disruptive as to impede public business. KRS 61.840. The Act does not, however, permit an agency to "clear the room" and continue to discuss public business in a "closed session" absent express legal authority per KRS 61.810(1)(a) through (m) and full compliance with the requirements for conducting a closed session per KRS 61.815(1)(a) through (d).
Nor does the Act "recognize a class of violations of lesser gravity then the remaining class of violations and therefore capable of being dismissed as merely 'technical.'" 00-OMD-114, p. 3. The Open Meetings Act recognizes a distinction between failure to substantially comply with "the requirements of KRS 61.810, 61.815, 61.820, and KRS 61.823," and failure to substantially comply with KRS 61.835 (minutes to be recorded) and KRS 61.840 (conditions for attendance.) In the case of KRS 61.810, 61.815, 61.820, and 61.823, "any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance . . . shall be voidable by a court of competent jurisdiction." KRS 61.845(5). This is not true of formal action taken by an agency without substantial compliance with KRS 61.835 and KRS 61.840. The violation that Mr. Powell alleged was based on the city council's failure to comply with KRS 61.815(1).
Because the Nortonville City Council failed to comply with KRS 61.815(1)(a) and (b) by giving notice in the 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, we cannot assess the propriety of any of the topics discussed in closed session under the exceptions to the Act. In Ratliff, above, the Kentucky Supreme Court noted that the exceptions must be "narrowly construe[d] and appl[ied] so as to avoid improper or unauthorized closed, executive, or secret meetings," concluding that "[t]he exceptions to the open meetings laws are not to be used to shield the agency from unwarranted or unpleasant public input, interference, or scrutiny." Id. at 923. Whether "inadvertently" or not, this is how any unidentified exceptions arguably authorizing the closed session were used in this case.
Our role in adjudicating an open meetings appeal is limited to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850." We confine our comments relative to the remedy to which the city council agreed to a single observation. The council has not demonstrated that any of its closed session discussion was "privileged." Agreeing to discuss "those nonprivileged matters that may have been discussed" in the unauthorized August 4 closed session may therefore fall short of Mr. Powell's expectations and the law.
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.
Delbert PowellMayor James NoelJohn C. Whitfield
Footnotes
Footnotes
1 00-OMD-114, p. 3.