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 Hopkinsville City Council violated provisions of the Open Meetings Act when it "returned from [a] closed session" conducted during its December 15, 2009, meeting "and voted to take 'appropriate legal action. '" We find that although different circumstances may warrant greater specificity in framing a motion relating to final action on the matter discussed in closed session, the facts giving rise to this appeal did not warrant greater specificity. Accordingly, the Council did not violate KRS 61.815, or any other provision of the Act, in framing the motion.
On December 16, 2009, Kentucky New Era News Editor Julia Hunter submitted a written complaint to Mayor Dan Kemp in which she alleged that the "nondescript nature of" the motion and vote to take appropriate legal action "violate[d] the Open Meetings Act as it [was] the equivalent of voting in secret." Noting that "[t]he purpose of the [Act] is to prevent the public's business from being conducted in private," she complained that the vote "was worded vaguely to conceal any action that would take place as a result of the vote." As a means of remedying the alleged violation, Ms. Hunter proposed, inter alia, that the Council acknowledge the violation, nullify the action taken, and conduct another vote "with more specific language" at its next meeting.
In a response dated December 21, 2009, Mayor Dan Kemp denied the allegations in Ms. Hunter's complaint. Mayor Kemp explained:
KRS 61.815(1) requires public agencies, such as the City of Hopkinsville, to follow certain procedures in conducting a closed session to discuss matters exempted under KRS 61.810(1). At its December 15, 2009, meeting the City of Hopkinsville followed these procedures by noticing the subject matter of proposed or pending litigation, giving the reason for the closed session, citing KRS 61.810(1)(c) as the statutory authority for going into closed session, and by going into closed session via motion and vote of the council in the open session. Moreover, the City did not take any final action in the closed session and did not discuss matters unrelated to the reasons publicly announced.
Continuing, he referenced KRS 61.815(2) the literal reading of which "indicates that a public agency engaged in discussions under KRS 61.810(1)(c) involving proposed or pending litigation would not be required to observe the procedural requirements outlined in KRS 61.815(1) for conducting a closed session, " but noted that the City "adhere[s] to the interpretation of the [Act] espoused by the Attorney General's Office" requiring public agency compliance with KRS 61.815(1).
Mayor Kemp refused to concede "a violation of the law when [the City] acted appropriately in open session to ensure that it did not disclose the detail of the legal strategy [it] was undertaking to position itself for litigation with AT&T." He reasoned:
In examining each of the exceptions provided under KRS 61.810(1), it is clear that the General Assembly decided to grant the statutory exemptions based on an overriding policy and desire to enable public agencies to adequately protect the public's resources.
. . .
[I]f the city were not able to authorize settlements or initiate litigation without divulging the specific details, the taxpayers would be seriously disadvantaged and their resources would be more at risk. Disclosing the nature of a case or a particular plaintiff could allow opposing legal counsel the opportunity to legally maneuver in a way that could disadvantage the city or jeopardize its legal position. The taxpaying public would ultimately be required to bear the financial burden if a public agency was forced to take these actions with full disclosure of their nature. The General Assembly clearly understood this and embraced this policy in creating the exemptions under KRS 61.810(1). To facilitate compliance with KRS 61.815(1)(c) to not take final action in a closed session, public agencies must proceed carefully in how they phrase final agency action in order to guard against the harm the KRS 61.810(1) exceptions were designed to prevent.
"[T]o assure the public that the Council supports the specific action taken by the City," Mayor Kemp agreed to "bring the issue back before the Council at its next regular meeting so that the Council may further ratify [its] decision." Nevertheless, he reiterated, the Council "is not required to divulge the details of its litigation decisions in taking final action in open session [since d]oing so would entirely defeat the purpose of the statutory exemptions under KRS 61.810(1) . . . ."
On appeal, Ms. Hunter asserted that to approve a vaguely worded motion such as the motion at issue in this appeal, "would set a dangerous precedent, allowing public agencies . . . to elude public awareness . . . [by] shed[ding] no light on the action being taken." She rejected the argument that greater specificity in framing the motion would have jeopardized the City's legal position, observing that the City announced that the lawsuit had been filed 12 hours later and that the Christian County Justice Center was closed during those hours. It was her position that the Council's vote "in open session . . . was equivalent to voting in closed session . . ., comparable to a motion to 'take action on what we just discussed in closed session, '" and therefore violative of "the spirit and foundation of Kentucky's Open Meetings Act . . . ."
While we agree with Ms. Hunter that the spirit of the Open Meetings Act is better served when a public agency frames its motion relating to final action on the matter discussed in closed session with greater precision, the purpose for which KRS 61.810(1)(c) was enacted, and invoked in this particular situation, was best served by the motion as framed. Because KRS 61.815 does not directly address the degree of specificity required for the motion on final action, and the Council otherwise complied with the letter of KRS 61.815, we find that the Hopkinsville City Council did not violate the Open Meetings Act as alleged.
Our research confirms that this is an issue of first impression for this office. Although we have analyzed the requirements for going into closed session at considerable length, we have had no occasion to address questions relating to the motion on final action that follows. With reference to the former, we have taken our cue from the courts in holding:
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.
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997). Thus, KRS 61.815(1)(a) through (d) provides:
(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
We have frequently criticized an agency's failure "to shed any light on the general nature of the proposed or pending litigation or the immediacy of the threat of litigation" in discharging its duties under KRS 61.815(1), questioning how "the public, the courts, or this office can evaluate the propriety" of the agency's compliance with KRS 61.815(1) in the face of "absolute secrecy." 98-OMD-105, p. 6. This position was premised on the recognition that "[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," and that "[t]he failure to comply with the strict letter of the law in conducting meetings of the public agency violates the public good." Ratliff at 922, citing E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 1990).
Although the record on appeal is silent as to the exact wording of the Council's motion to conduct a closed session, The Kentucky New Era does not allege that the motion was deficient. We assume, therefore, that the Council described "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, " KRS 61.815(1)(a), enabling the public to assess the propriety of the closed session. The Council thus gave specific and complete notification of the topic to be discussed in that session, but stopped "short of disclosing the details of the closed session discussion, and defeating the purpose for which the closed session was called." 01-OMD-41, p. 8; see also, 07-OMD-029 (recognizing that "KRS 61.815(1)(a) contemplates more than agency recitation of the statutory language authorizing the closed session . . . but less than a description so detailed as to defeat the purpose of having the closed session" ).
Emerging from this closed session, the Council moved to take "appropriate legal action" relative to the matters discussed therein. Such a vaguely worded motion might, under a different set of facts, represent little more than a stratagem "to shield the agency from unwanted or unpleasant public input, interference, or scrutiny," Ratliff at 924. Here, however, the Council persuasively argues that the motion which followed its December 15, 2009, closed session was carefully worded "to ensure that it did not disclose the detail of the legal strategy [it] was undertaking to position itself for litigation with AT&T." We concur with the Council in the view that the rationale underlying KRS 61.810(1)(c) supports the approach it took upon returning to open session. As the Council correctly observes, "[d]isclosing the nature of a case or a particular plaintiff could allow opposing legal counsel the opportunity to legally maneuver in a way that could disadvantage the city or jeopardize its legal position. " Premature disclosure could, for example, enable opposing counsel to beat the city in the race to the courthouse or to choose the forum, state or federal, in which the action would be brought. "[T]he drafters of this legislation clearly envisioned that [KRS 61.810(1)(c)] would apply to matters commonly inherent to litigation, such as preparation, strategy, or tactics," id., all of which were encompassed in the properly noticed closed session discussion. The exception must be construed in a manner sufficiently broad to protect the agency's tactical position and litigation strategy.
Unlike KRS 61.815(1)(a), KRS 61.815(1)(c) does not establish specific requirements for a motion relating to final action on the matters discussed in closed session. The latter provision therefore vests the agency with reasonable discretion in framing the motion. Where, as here, the purpose for which the exemption was invoked, and the closed session conducted, would be defeated by a specifically worded motion that would disclose the agency's preparation, strategy and tactics, we cannot assign error. This holding should not be construed to vest public agencies with unfettered discretion to evade public oversight of final action on matters discussed in closed session. Each case must be decided on its facts. Here, we find no error in the motion relating to final action on the matters discussed in closed session at the Hopkinsville City Council's December 15 meeting and conclude that the motion was not tantamount to taking action in closed session in contravention of KRS 61.815(1)(c).
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.
Julia HunterJ. Daniel KempJ. Foster Cotthoff
Footnotes
Footnotes
1 Notwithstanding the language found at KRS 61.815(2), the Attorney General has, as the Council correctly observes, resolved the problems of interpretation associated with this statute in favor of agency compliance with KRS 61.815(1). See, e.g., 05-OMD-148 and authorities cited therein. Here, as in the referenced open meetings opinion/decision, "we are not prepared to depart from [thirty] years of interpretation of the law absent judicial repudiation of our position." 05-OMD-148, p. 12-13. Fortunately, the Hopkinsville City Council "agrees that the public should always be assured that its public officials are observing the requirements of the law in going into a closed session [and] . . . adheres to the interpretation of the Open Meetings Act espoused by the Attorney General's Office." We are therefore spared debate on this issue.
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