Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Prestonville City Commission violated provisions of the Open Meetings Act by failing to provide adequate notice of special meetings; failing to observe the requirements for conducting closed sessions; improperly removing a member of the public from an open meeting; permitting city employees to remain in the meeting room during the closed session while excluding the public generally; and conducting a "Christmas Special Meeting" without authorization. Given the conflicting evidentiary record, we cannot conclusively resolve these questions but take this occasion to clarify the law for all parties concerned. Accord, 10-OMD-091 (because facts giving rise to appeal were disputed, Attorney General could not determine whether allegations of open meetings violations were substantiated).
In a letter addressed to Prestonville Mayor Vickie Burgin, James E. McArter complained:
1. At a regular meeting conducted in November, 2012, the commission approved a motion to conduct a special meeting "to discuss whether or not to pay Can Do Construction." When the November 19, 2012, Special meeting notice was posted on Sunday, November 18, 2012, the commission identified "Possible Litigation, Can Do Construction" as the only agenda topic in contravention of KRS 61.823(3). 1
2. At its November regular meeting, the commission did not approve a motion to conduct a closed session thirty minutes before the approved special meeting.
3. At its November 19 special meeting, the commission failed to observe the requirements for conducting a closed session by describing the "general nature of the business to be discussed" in contravention of KRS 61.815(1)(a).
4. He (Mr. McArter) was improperly removed from the November 19 special meeting by a member of the Carroll County Sheriff's Department.
5. City employees were permitted to remain in the meeting room during the closed session.
6. The commission conducted an unauthorized "Christmas Special Meeting" on December 10, 2012, three hours before, and in lieu of, its regularly scheduled meeting of that date. 2
As a means of remedying these alleged violations, Mr. McArter proposed, inter alia , that the commission publish a public apology and admission of wrongdoing in the local newspaper and that its members "learn [their] respective jobs."
In a response dated December 13, 2012, the commission denied each of Mr. McArter's allegations. The commission maintained that adequate notice of the November 19 special meeting was given twenty-four hours before the meeting occurred and that the only topic discussed at the meeting was possible litigation against Can Do Construction; that the requisite formalities for conducting the closed session were observed by motion and second "to close the meeting to discuss possible or proposed litigation;" and that city employees "do not qualify as the public" and may therefore remain in a closed session from which the public is excluded. In supplemental correspondence addressed to this office, the commission acknowledged that "after many interruptions," Mr. McArter was "asked to leave the meeting until it was time for public comments." The commission noted that he could have remained in the room had he not "refused to comply with the simple rule" restricting public comment until the appropriate time. Continuing, the commission observed:
The special meeting was an open meeting, with notice provided more than twenty-four (24) hours in advance. The meeting was held on a Monday evening. On Friday, the Mayor posted a sign on the City Hall door with the time, date, place and it was cited that the agenda was "possible litigation." Written notice was also hand-delivered by the Mayor to each Commissioner more than twenty-four (24) hours in advance. The provisions of KRS 61.823 were strictly followed. 3
It was stated during the open meeting that the meeting would be closed to discuss "possible litigation," which implicates KRS 61.810(1)(c). The relevant exception to the Open Meetings Act is "discussions of proposed or pending litigation against or on behalf of the public agency. " There was an extensive discussion about the exception to the Open Meetings Act and the statute was read. At that time, a motion was made and seconded to go into a closed session to discuss possible litigation, KRS 61.810(1)(c) being cited as the exception to the Open Meetings Act.
The commission emphasized the importance of conducting discussion of litigation strategy in closed session as reflected in, and supported by, KRS 61.810(1)(c).
Mr. McArter and the commission have identified, and are presumably familiar with, the relevant statutes relating to the conduct of public meetings. Their descriptions of how these meetings were conducted differ. This office is not, in general, equipped to resolve factual disputes. We review the pertinent authority in the hope of resolving any legal ambiguities arising from the facts.
Allegation 1, 2, and 6: Adequacy of meeting notice
KRS 61.823 governs special meetings and establishes requirements aimed at "maximiz[ing] notice of public meetings and actions."
Floyd County v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). It provides, in part, that "[t]he presiding officer or a majority of the members of the public agency may call a special meeting. " It does not impose additional requirements on public officials in making the call, but focuses instead on requirements for ensuring public notice after the meeting is called but at least twenty-four hours before it is conducted. 4 In the course of its November regular meeting, the Prestonville City Commission apparently approved a motion to conduct a special meeting "to discuss whether or not to pay Can Do Construction." Although the Open Meetings Act did not require the commission to do so, the commission did not violate KRS 61.823 when it did. Nor did it violate the Act by subsequently preparing an agenda that did not mirror the language of the approved motion. The commission described the nature of its dispute with Can Do Construction and the likelihood of litigation relating to payment of Can Do's claims. In our view, such discussions may properly be characterized as "Possible litigation, Can Do Construction." To this extent, the meeting call and meeting notice satisfied the requirements of KRS 61.823(2) and (3). 5 Nevertheless, the disputed facts relating to posting of the notice preclude us from resolving Mr. McArter's allegations under KRS 61.823(4)(c) for or against the commission. 6 Accord, 11-OMD-167 and 11-OMD-178 (enclosed) .
Allegation 3: Failure to observe requirements for conducting closed session
KRS 61.815 addresses closed sessions and requirements relating thereto. It, too, is aimed at "maximizing notice" of agency action. Subsection (1)(a) requires public agencies to give notice during 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. " The commission maintains that "a motion was made and seconded to go into closed session to discuss possible litigation, KRS 61.810(1)(c) being cited as the exception to the Open Meetings Act. " Further, the commission asserts, "[t]here was extensive discussion about the exception to the Open Meetings Act and the statute was read." It is unclear whether this discussion included reference to Can Do's claims for payment, and potential litigation arising therefrom. Absent these facts, we cannot substantiate Mr. McArter's claim that the commission failed to describe the general nature of the business to be discussed in the closed session. 7 Nevertheless, we remind the commission that KRS 61.815 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." 01-OMD-181, p. 13 (enclosed) .
Allegation 4: Improper removal of complainant from the meeting
KRS 61.840 relates to "Conditions for attendance" at public meetings, declaring that "[n]o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. " This provision has been the subject of a handful of open meetings decisions, summarized in 08-OMD-249 (enclosed) , none of which resulted in a favorable ruling for the public agency. Critical to each of these decisions was the recognition that resolution of the question presented turned on a subjective assessment, conducted in a factual vacuum, of a recording or transcript of a public meeting. Here, we do not have the benefit of a recording or transcript but are asked to make an assessment based on a conflicting written record. We are unable to do so. Nevertheless, we remind Mr. McArter that the Open Meetings Act does not invest him with the enforceable right to "participate in the meeting and address during the meeting the members of the public agency. " 95-OMD-99, p.3, quoted in 08-OMD-249. Conversely, we remind the commission that "KRS 61.840 vests members of the public with a virtually unconditional right to attend all meetings of a public agency" and that "less restrictive conditions" than removal from the meeting should be imposed in all but the most egregious cases.
Allegation 5: Selective admission of non-members to closed session
No provision of the Open Meetings Act delineates who may or may not attend a closed session but it is commonly understood that "selective admission" is impermissible. See, e.g., OAG 92-146 (holding that "a public meeting of a public body is either open to everyone under the Open Meetings Act or closed to everyone under a statutorily recognized exception to the Open Meetings Act, and there is no principle of selective admission set forth in the Open Meetings Act" ); see also KRS 61.810(1) (declaring that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency shall be public meetings, open to the public at all times"); accord 00-OMD-219 (enclosed) . Nevertheless, this office has, on occasion, recognized that the presence of a non-member, including an employee of the agency, the attorney for the agency, or a third party, does not constitute selective admission where that employee, attorney, or third party's presence is necessary to the conduct of the closed session. Thus, an agency clerk may be needed to take notes during a closed session, an agency attorney may be needed to provide legal advice on proposed or pending litigation, and a third party may be needed to "contribute information or advice on the subject matter under discussion." 8 00-OMD-219, p. 5 (enclosed) .
If the presence of the city employees who remained in the closed session was required for a particular purpose, such as taking notes or sharing information that they alone possessed, the commission cannot be said to have violated the Open Meetings Act by permitting their presence. However, those employees do not have a right to attend a closed session if their presence is not required. In such cases, their status was no different than any other member of the public and they, too, must leave the meeting room when a closed session commences. Again, we are unable to conclusively resolve this question given the conflicting factual narrative presented by the parties.
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:
James E. McArterVickie BurginAlecia Gamm Hubbard
Footnotes
Footnotes
1 Mr. McArter provided this office with copies of the notices for the challenged November 19 and December 20 meetings. The notices are reproduced below.
November 19 closed meeting:
Special Closed Meeting
City of Prestonville
Monday 11-19th, 2012
6:00 pm
1 Front st City Building
Agenda:
Possible litigation,
Can Do Construction
Closed Meeting order KRS 61.810
Any question please call
City Attorney
November 19 special meeting:
Special Meeting
City of Prestonville
Monday 11-19th, 2012
6:30 pm
1 Front st City Building
Agenda:
Possible litigation,
Can Do Construction
Closed Meeting order KRS 61.810
Any question please call
City Attorney
December 10 "Christmas Special Meeting":
City of Prestonville
Christmas Special Meeting
Dec 10th @ 3:00 pm
"Agenda"
Minutes
Snow Removal Bids
Building Bids & Litigation
City Swear in Ceremony
Bills
2 Mr. McArter made this allegation in a separate open meetings complaint dated December 10, 2012. The record on appeal contains no response to this complaint, and the commission offers no explanation for its apparent failure to comply with KRS 61.846(1). This, then, represents the only uncontroverted violation of the Open Meetings Act. Accord, 10-OMD-091 (enclosed).
3 The commission does not indicate whether media organizations that had submitted written requests to be notified of special meetings were, in fact, notified.
4 KRS 61.823(3) and(4)(a), (b), and (c) thus provide:
(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
(4) (a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(b) A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail. The written request shall include the electronic mail address or addresses of the agency member or media organization.
(c) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
5 Because the commission treated the rescheduled regular meeting of December 20 as a special "Christmas" meeting, we believe Mr. McArter's challenges to that meeting lacks merit.
6 As noted, Mr. McArter states that notice was posted on Sunday, November 18. The commission maintains that notice was posted on Friday, November 16.
7 Although no apparent harm resulted from the commission's decision to publish two notices for the November 19 special meeting, the first notice for the closed session and the second notice for the open session, the commission was not required to publish separate notices. Because the 6:00 p.m. closed session apparently convened in an open session, and the KRS 61.815 requirements were observed before it retired to closed session, no error can be assigned to the commission for preparing two notices.
8 In those cases of non-member third party attendance in closed session, this office has strongly admonished that the third party "who is brought into a closed session for a purpose should remain in the session only as long as the purpose is being served" and only after the agency "explain[s] why such persons are invited into the session." OAG 77-560, p. 2 quoted in 00-OMD-219, p. 5 (enclosed). Such limitations would not normally apply to an agency employee or the agency's attorney.