Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Meetings Decision
Michael Murphy appeals the Glencoe City Council's response to his September 15, 2014 written complaint alleging that a violation of the Open Meetings Act would have occurred at the council's September 8, 2014 regular meeting but for an objection raised by an individual identified as "Mr. Caldwell." Mr. Murphy indicates that the threatened violation occurred when Mayor James Nantz "entertained a motion from Mr. Dunaway to go into closed session" without identifying the general nature of the business to be discussed, the reason for the closed session, or the statute authorizing the closed session. As a means of remedying the threatened violation, Mr. Murphy proposed that the council "strictly apply . . . all provisions of KRS 61.810 and KRS 61.815 whenever conducting closed or executive session meetings." In a timely written response to Mr. Murphy's complaint, the council denied any violation of the Open Meetings Act, noting that "[t]he Mayor chose not to conduct a closed session because there was no exception he felt applied." The council offered assurances that it had "conducted, and will continue to conduct closed session in compliance with the law." Because the Glencoe City Council did not conduct a closed session at the September 8 meeting we find no violation of the Act.
On appeal, the council acknowledges that "the Mayor asked for a motion to conduct a closed session" but was interrupted by "another mayoral candidate" who expressed the view that the proposed closed meeting "was an illegal act." The city attorney, who had not been apprised of the intended topic for the closed session, thereafter "read each and every exemption from the Open Meetings Requirements under KRS 61.810," and the Mayor "stated because no exemption applied, there would be no closed session. "
We share Mr. Murphy's concern that a closed session was contemplated before its legality was established, but we find no violation because no closed session occurred. KRS 61.810(1) mandates that all meetings of a quorum of the members of a public agency at which public business is discussed or action is taken must be conducted as "public meetings, open to the public at all times," unless the topic to be discussed falls within one or more of the thirteen exceptions codified at KRS 61.810(1)(a) through (m) as "strictly construed." 1 A request for a motion to conduct a closed session should only be made after it has been confirmed that the topic to be discussed is excepted from the requirements of an open meeting and not before it has been confirmed.
KRS 61.846(2) empowers this office to issue a decision stating whether the agency violated the provisions of KRS 61.805 to 61.850. We are not empowered to issue a decision stating that a threatened violation contravenes the law. See also 14-OMD-165 (Attorney General is not empowered to prospectively address violations of the Open Meetings Act that are anticipated but have not occurred). Because of the intercession of an attendee at the September 8 regular meeting no unauthorized closed session occurred at the meeting, and we find no violation.
Either party may appeal this decision 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. Return to Text
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