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 Garrard County Fiscal Court violated provisions of the Open Meetings Act when, at a meeting on November 10, 2014, it went into executive session pursuant to KRS 61.810(1)(c) to discuss "whether certain account transfers had the potential of creating liability." For the reasons that follow, we find that the executive session was conducted in violation of the Act.
In a complaint to County Judge/Executive John Wilson dated November 21, 2014, Garrard Central Record Editor Ted K. Cox alleged that the Garrard County Fiscal Court, at its meeting on November 10, entered a closed session in violation of KRS 61.815(1)(a), improperly invoking KRS 61.810(c) where there was no specific litigation pending or threatened against the fiscal court. He stated: "Given that there apparently was not a concrete threat of litigation, due to the fact that the public was unaware of any issue with the transfers and no individual had threatened litigation in writing or orally against the court, we believe this meeting was illegal." As a remedy, Mr. Cox proposed that the fiscal court admit to the violation, provide a record of the closed session, and comply with the law in the future.
Judge Wilson replied 1 that "the fiscal court discussed whether certain account transfers had the potential of creating liability." Specifically, Garrard County was "proceeding to refund monies held as surplus from the repealed insurance premium tax" and some payments were "made from the debt service account (in which the tax surplus monies are held) to the emergency response and ambulance account." The fiscal court had advised the Judge/Executive "that they intended all sums to be held pending distribution of the refunds. " Judge Wilson described no specific threat of litigation that had been made, but only "potential liability to the County. " His position was that those circumstances authorized a closed session pursuant to KRS 61.810(1)(c).
Mr. Cox's appeal was received in this office on January 20, 2015, and Garrard County Attorney Mark H. Metcalf responded on January 28, 2015. Mr. Metcalf states that "Garrard magistrates were advised by the county attorney in executive session that the county would confront a taxpayer lawsuit, if payments continued." Although Mr. Metcalf attempts to characterize this anticipation of taxpayer litigation as a "certainty of suit," he makes no suggestion that any taxpayer had expressed interest in filing a lawsuit against the fiscal court at the time of the meeting.
Similarly, Mr. Metcalf recounts that he advised the fiscal court members of the possibility of individual liability for "members who failed to correct the errant transfer in light of the processing of taxpayer claims which were then being accepted." He insists that "the likelihood of suit and liability was not potential, but real in terms of any shortfalls the county might experience as a result of this spending, if left uncorrected, as well as the costs of litigation." While the chance of liability might have been real, we note that Mr. Metcalf cites not a single instance of a threat to sue the fiscal court or its members.
KRS 61.810(1)(c) authorizes a closed session for "[d]iscussions of proposed or pending litigation against or on behalf of the public agency. " But this exception to the Open Meetings Act "must [be] narrowly construe[d] and appl[ied] ? so as to avoid improper or unauthorized closed, executive or secret meetings."
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). The Court noted in Ratliff:
The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not to be construed to apply "any time the public agency has its attorney present" or where the possibility of litigation is still remote.
Id. at 924 (citing
Jefferson County Board of Education v. The Courier-Journal, 551 S.W.2d 25 (Ky. App. 1977)). Thus, the exception allows a public agency to "maintain the confidentiality of its litigation strategy when it is a party to litigation, threatened with litigation , or anticipates initiating litigation on its own behalf." OAG 78-227 (emphasis added).
Nevertheless, "[t]he threat or proposition of litigation must be substantial to trigger the exception. There must be a direct suggestion of litigation conditioned on the occurrence or nonoccurrence of a specific event."
Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012) (emphasis added). It is this "direct suggestion of litigation" against the agency which makes the threat substantial enough to invoke the exception under KRS 61.810(1)(c). See also 11-OMD-162 (actual suggestions of litigation by members of community made possibility of litigation more than remote) .
In 95-OMD-57, we found that the Lexington-Fayette Urban County Government had conducted an improper closed session to discuss a dispute with the Commonwealth over the property known as the "Ben Snyder Block." The local government in that case "was discussing its obligations and possible responses relative to its alleged failure to abide by the terms of the Memorandum of Understanding entered into by the Commonwealth and the urban county government." There, as in the present case, the local government recognized that it might arguably have committed some impropriety; yet, also as in the present case, no lawsuit had been threatened. Accordingly, we found that KRS 61.810(1)(c) was improperly invoked. Furthermore, we have followed a similar standard in other instances where this exception was invoked. ( See 11-OMD-162 and decisions cited therein.)
Nothing in the record indicates that litigation against the Garrard County Fiscal Court or its members had been threatened or directly suggested by anyone as of November 10, 2014. Therefore, in accordance with precedent, we find that the fiscal court improperly invoked KRS 61.810(1)(c), "[d]iscussions of proposed or pending litigation, " as the legal basis for the closed session at its meeting on that date.
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 Judge Wilson's response to the complaint is undated, Mr. Cox stipulates that it was timely.