Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Joint Board of Ethics of the Cities of Bardstown, Fairfield and the County of Nelson, Kentucky violated the Kentucky Open Meetings Act in failing to comply with requirements codified at KRS 61.815(1) before going into closed session at its meeting on July 28, 2009. Kevin Brumley initiated this appeal by letter dated October 5, 2009, relying on the minutes from that meeting, which confirm that a specific exception was not cited to justify going into closed session. By letter dated October 8, 2009, Mr. Brumley initiated a second appeal challenging the nearly identical actions of the Board at its August 19 meeting as reflected in the minutes from that meeting. Inasmuch as these appeals involve the same parties and responses from the agency which are, in relevant part, verbatim, and thus present identical questions of law, they have been consolidated for purposes of review under KRS 61.846(2).
Upon receiving notification of Mr. Brumley's appeals from this office, Christina Bradford, Chairperson, responded on behalf of the Board as follows:
Please be advised that the Joint Board has responded to Mr. Brumley's request regarding the July 28th and August 19th Joint Board's meetings and closed sessions. A copy of those Responses as well as the Agendas published and provided to the media and posted for the public at least 24 hours in advance of those meetings prove that the public was informed that closed sessions were planned to discuss potential ethics violations.
During these [B]oard meeting[s], the Joint Ethics Board did actually cite generally to the [O]pen [M]eetings [L]aw and Fiscal Court Ordinance in question. It was the Board's good faith belief that this satisfied both substantively and procedurally the requirements of the law. Concededly, the minutes do not reflect this, nor did the Board specifically [c]ite the specific subsections of the Open Meetings Law. Based upon the AG's decision in 09-OMD-169, which was received by the Board on October 14, 2009, the Board now understands that procedurally it was in error and will correct this problem in the future.
(Emphasis added.) Because the Board has acknowledged the procedural error it committed on July 28 and August 19, and, to its credit, has agreed to comply with KRS 61.815(1) from this point forward, an exhaustive analysis of the existing law relative to KRS 61.815(1) is unnecessary.
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:
Resolution of this appeal turns on the application of KRS 61.815(1)(a). 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). Of particular significance, the Supreme 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 (emphasis added). Accordingly, the Attorney General has consistently recognized that "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; 01-OMD-181.
As the Board has acknowledged, the analysis contained in 09-OMD-169, a recent decision involving the same parties and question of law, is controlling on the facts presented which, in relevant part, 1 mirror those which resulted in 09-OMD-169. In particular, the following excerpt is dispositive:
The minutes of the Board's April 24 [and July 28 and August 19] meeting reflect that "Chair Bradford announced that the Board needed to go into a closed session pursuant to KRS 61.810," and that "[u]pon motion of Board Member Bradford, duly seconded by Board Member Alexander and carried by a vote of 5 to 0, the members went into closed session at 1:04 p.m." The minutes do not reflect strict compliance with the requirements of KRS 61.815(1)(a). There is no indication that notice was given in the open meeting of the general nature of the business to be discussed, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. The Board's announcement was deficient insofar as it only referenced KRS 61.810 and did not identify the exception authorizing, the reason for, and general nature of the business to be discussed in, its closed session. To the extent that the Board failed to strictly comply with the requirements codified at KRS 61.815(1), we find that it violated the Open Meetings Act.
Id., p. 4. Because the instant appeal present no basis to depart from the reasoning found in 09-OMD-169, this office reaches the same result. Insofar as KRS 61.815(1)(a) contemplates "more than agency recitation of the language of the exception," it stands to reason that a notification without any reference to the exception is deficient. 00-OMD-64, p. 6. The Board has conceded as much; further analysis is therefore unwarranted. A copy of 09-OMD-169 is attached hereto and incorporated by reference.
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.
Footnotes
Footnotes
1 Although the Board violated KRS 61.846(1) in failing to issue a timely written response to Mr. Brumley's September 21, 2009, complaint, which culminated in 09-OMD-169, the Board's response to Mr. Brumley's appeal in that case mirrored the letters dated October 1, 2009, which constituted the Board's timely initial responses to his complaints of September 28 and 29, which culminated in this appeal(s).