Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Georgetown City Council violated the Open Meetings Act at its regular meeting on April 23, 2012. For the reasons that follow, we find insufficient basis to conclude that the council violated the Act.
By letter dated April 26, 2012, Mike Scogin, publisher and editor of the Georgetown News-Graphic, submitted a written complaint to Mayor Everette Varney, in which he alleged:
During the regular meeting of the Georgetown City Council on April 23, a secret meeting was called in violation of KRS 61.805. The explanation for the secret meeting, which was not on the agenda, was given by council member Mark Singer as "pending litigation. " However EMS Q&A was on the agenda referring to the city's proposal to start a city-operated EMS ambulance service.
The council and Georgetown Fire Chief Robert Bruin then retired behind closed doors[,] later returning when Council member Brad Penn announced that the council's request for a Certificate of Need in regards to the ambulance service was deferred until later.
I believe this was a blatant and deliberate attempt by you and the city council to cloak the public business regarding the ambulance service. The explanation for "pending litigation" is inaccurate as there is no such action regarding the ambulance service.
As a means of remedying the alleged violations, Mr. Scogin proposed that the mayor and council members publicly acknowledge that the closed session was unlawful and pledge to follow the Open Meetings Act in the future.
In a letter dated May 1, 2012, City Attorney Logan B. Askew denied the allegations of an Open Meetings Act violation, maintaining in pertinent part:
In your letter, you assert that the closed session was not on the agenda, which is inaccurate. The closed session was on the agenda at the end of the meeting, but was moved up. The motion to go into closed session was made pursuant to KRS 61.810(1)(c) to discuss pending litigation against the City.
During the closed session, the following cases were discussed:
In your letter, you only mention the CON matter and assert that it does not constitute pending litigation under the Open Meetings Law. I disagree with your assessment. The consideration of a contested CON application is an administrative law proceeding conducted pursuant to KRS 216B.040, KRS 216B.085 and 900 KAR 6:090 and, therefore, constitutes pending litigation under KRS 61.810(1)(c).
At the time of the closed session, Scott County Fiscal Court had engaged outside legal counsel who requested a hearing to oppose the City's application for a CON. An adjudicatory hearing had been scheduled for May 8 and 9, and a conference call involving the parties' attorneys with Hon. Tracey Hitchcock, Hearing Officer, had been scheduled for April 25, 2012 at 9:00 a.m.
While not a court proceeding, it is nevertheless a legal proceeding with rules which provide for the presentation of sworn witness testimony and documentary evidence, cross-examination of witnesses, and submission of oral and written objections and arguments. KRS 216B.085. A legal decision adjudicating the rights of the parties is made and aggrieved parties may appeal a final decision to the Franklin Circuit Court.
Although not mentioned in your letter, outside legal counsel was also present during this part of the closed session to advise the Mayor and City Council with respect to the CON case. Since this legal advice was rendered in connection with pending litigation, it was subject to the attorney client privilege. 10 OMD 210.
Mr. Scogin initiated this appeal on May 7, 2012. His letter of appeal states in part:
Where a closed meeting is placed on an agenda is irrelevant. However, in this meeting Georgetown has a closed meeting set for Item # 14, but was actually called at Item # 7 lab[e]led - "Fire-based EMS, Q and A." This is significant because it is an indication the Council was not actually discussing "pending litigation" in the closed meeting, but rather questions relating to the CON application, including political issues unrelated to any pending litigation or threat of litigation.
?
Immediately upon reentering the council chambers following the closed meeting, the City Council voted unanimously to defer the CON application. There was no further discussion or explanation or questions and answers.
Included with the appeal is a copy of the April 23 meeting agenda showing Item 7 as "Fire Based EMS Q and A."
Mr. Askew responded with a letter dated May 15, 2012, in which he incorporates his previous response by reference and adds the following salient points:
The Scott County Fiscal Court hired attorney Lisa English Hinkle who filed the attached letter indicating that Scott County opposed the City's CON and requested a hearing. ? The County's request for a hearing triggered the provisions of KRS 216B.085 and 900 KAR 6:090 resulting in an adversarial proceeding in which the parties present evidence as in a court case.
?
KRS 61.810(c) [ sic ] does not define litigation. Had the General Assembly wished to restrict the definition of litigation to court proceedings, it could have done so like the State of Ohio. ("Conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action"). Ohio Revised Code, 122.21(G)(3).
He further mentions that KRS 216B.115 allows for a judicial appeal from a ruling of the Cabinet in a contested CON proceeding, and that KRS 216B.120 imposes a substantial-evidence standard for review of the Cabinet's findings, with no new evidence admissible except as to fraud or misconduct.
KRS 61.810(1)(c) permits closed sessions for "[d]iscussions of proposed or pending litigation against or on behalf of the public agency. " In
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997), the Supreme Court stated the following in regard to this provision:
[T]he drafters of this legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics. Obviously, anything that would include the attorney-client relationship would also fall within this exception. The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply "any time the public agency has its attorney present" or where the possibility of litigation is still remote. See Jefferson County Board of Education v. The Courier-Journal, Ky.App., 551 S.W.2d 25 (1977).
955 S.W.2d at 923-24. The question presented here is whether the pendency of a contested Certificate of Need proceeding before an administrative body constitutes "proposed or pending litigation against or on behalf of the public agency" within the meaning of the statute. We believe that it does.
In 09-OMD-208, the Scott County Board of Education had used a closed session to discuss whether to sign a proposed resolution agreement with the United States Department of Education's Office of Civil Rights (OCR) concerning an open civil rights complaint, or to defend against the allegations. The appellant in the open meetings appeal argued that KRS 61.810(1)(c) did not apply because "OCR 'does not have the power to litigate,' but may only 'initiate administrative proceedings ? or ? refer the case to DOJ for judicial proceedings." The Attorney General rejected that argument, stating as follows:
In our view, discussion of "strategy" and "tactics" is broad enough to extend to discussions concerning "the advisa[bility of] proceed[ing] toward early resolution or ? defend[ing] against the allegations" in the reopened OCR Complaint. Regardless of whether the reopened complaint was intertwined with the due process hearing or any other active or inactive litigation, or whether the Board's decision to seek resolution was the only practicable one, the Board was entitled to a briefing on the strengths and weaknesses of its position relative to the complaint which, if not negotiated to a successful resolution, might result in administrative proceedings to suspend, terminate, or discontinue federal financial assistance or referral for judicial proceedings.
09-OMD-208, p. 3 (emphasis added). This office concluded that "the public's interest [in open meetings] must yield to the Scott County Board of Education's need to discuss the possible resolution of a reopened OCR complaint without publicly compromising its litigation posture." Id., p. 4. It is therefore established that the exception for "proposed or pending litigation" can be applied at a stage where an administrative proceeding is a more immediate threat than a judicial proceeding. In the present case, the CON proceeding was much farther along than the matter in 09-OMD-208, since an evidentiary hearing had already been scheduled.
Any final determination by an administrative agency is subject to at least limited judicial review, whether directly, through a process established by statute, or indirectly, under the due process requirements of the
Kentucky Constitution. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm'n, 379 S.W.2d 450 (Ky. 1964). Therefore, any formal, adversarial administrative proceeding is already presumptively the beginning of a process that is substantially likely to end in court. An administrative process of this nature, which involves the same "matters commonly inherent to litigation, such as preparation, strategy or tactics, "
Floyd County Board of Education v. Ratliff, 955 S.W.2d at 924, is within the scope of the legislative intent to protect the attorney-client relationship for public agencies in adversarial matters. Accordingly, it is no mischaracterization to describe an ongoing adversarial quasi-judicial administrative proceeding as "pending litigation. "
In further support of this conclusion, we note that KRS 61.810(1)(j), which addresses closed sessions of public agencies in their roles as decision-makers rather than litigants, refers to "[d]eliberations of judicial or quasi-judicial bodies regarding individual adjudication" (emphasis added). If judicial and quasi-judicial proceedings are recognized as equivalent for purposes of the adjudicating body, it is reasonable to suppose that they are also equivalent for purposes of an agency involved as a party in the proceedings. Statutory terms are to be construed within their context, with related provisions given consistent meaning.
Rogers v. Fiscal Court of Jefferson County, 48 S.W.3d 28 (Ky. App. 2001). As far as their adversarial and adjudicatory nature is concerned, most judicial and quasi-judicial proceedings are functionally indistinguishable, and the interests served by conducting strategic discussions in closed session are identical. We therefore find that the Georgetown City Council properly invoked KRS 61.810(1)(c) to discuss strategy in the pending administrative case.
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.
Distributed to:
Mr. Mike ScoginLogan B. Askew, Esq.