Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the City of Columbia violated the Open Meetings Act in failing to comply with the necessary requirements for giving notice that it was going into closed session. For the reasons set forth below, we find that the City violated the Act.
On January 23, 2018, Adam Capps, Assistant Editor, The Adair County Community Voice (Appellant), sent a letter to Mayor Curtis Hardwick, City of Columbia, to complain that the Columbia City Council had failed to comply with the Open Meetings Act during its January 18, 2018, meeting when the Council went into closed session. The complaint stated that the Mayor failed to give a reason for the closed session; failed to cite the specific provision of KRS 61.810 authorizing the session; and did not give a description of the business to be discussed in the closed session. Appellant stated in his complaint:
[N]o reason was cited for the closed session or why it would be necessary to enter into executive session to discuss "equipment" when the item listed to be discussed on the agenda was "personnel. " Furthermore a description of business to be discussed was not provided to the public. When questioned by a reporter prior to going into closed session, the mayor and city attorney left the meeting to discuss the issue privately, then returned, with the city attorney then stating the issue involved "equipment" and that "no one is being fired or reprimanded but we are being proactive about ongoing issues and we are spearheading it before there is a broken law" but still failed to sufficiently meet the requirements of the statute.
The agenda for items to be discussed indicated "personnel" while the city attorney cited that discussion within the closed session would concern ongoing "equipment" issues.
Appellant also made an open records request as part of his complaint to the City. In response to the complaint and the open records request, the City responded to the request for records, but did not address the Open Meetings complaint. Appellant then filed his appeal with this Office.
On appeal, the City denied that it violated the Open Meetings Act as alleged by Appellant. The City stated that "the City's actions would fall under KRS 61.810[1](f)[.]" The City further stated:
When examining the reasons stated on the agenda, "personnel, " the reason given by the city attorney, "equipment," and the statement given before voting occurred for the closed session, a reasonably prudent person could infer the nature of the matters to be discussed. This fact is easily discernable from the words, "no one," "reprimand, " and "fired. " When these facts are coupled with [KRS] 61.810[1](f), a reasonably, prudent person could understand that the nature of the meeting might lead to discipline of an individual; Otherwise why would the City Attorney use the words, "fire," or "reprimand. " As such, KRS 61.810[1](f), is applicable in this case.
Also, the City agrees that the specific exception statute was not provided, but urges that the explanation of same, should be deemed as to satisfy the statutory requirements. Additionally, it is without question that attorneys throughout the Commonwealth of Kentucky explain legal principles, provisions, exceptions, and elements of the law without citing the KRS. Finally, it should be noted that the City Attorney did attempt to explain the nature of the closed session exception, rather than stick with "personnel, " "equipment," or the specific statutory language when answering questions presented by the media. In no way, did the City of Columbia, and/or its attorney, attempt to mislead, alter, change, or otherwise conceal the actual nature of the requested closed session. As such, the actions of the City of Columbia, and Its attorney, should be construed as to satisfy KRS 61.810[1](f).
Violation of KRS 61.815(1)(a) . KRS 61.815(1) and 61.815(1)(a) provide as follows:
(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:
(a) Notice shall be given in regular 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 express purpose of this, as well as the other provisions of the Open Meetings Act, "is to maximize notice of public meetings and actions [and t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."
Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 922 (Ky. 1997). With specific reference to KRS 61.815, the Supreme Court declared that prior to going into closed session, "the public agency must state the specific exception contained in the statute which it relied upon," and give " specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting ." Id. at 924 (emphasis added).
In view of the disparate nature of the thirteen exceptions included in KRS 61.810(1), there can be no bright line test for determining if specific and complete notification has been given. However, consistent with the right of the people to "remain[] informed so that they retain control over the instruments they have created" (1974 HB 100, Preamble), the notification, given in the open meeting, must include a statement of the exception authorizing the closed session, the reason for 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 ." 00-OMD-64. (Emphasis added).
Specific Statutory Exception . The City admits that it failed to include a statement of the specific statutory exception authorizing the closed session, but contends that the explanation given for going into closed session is sufficient to give notice of the exception: "[I]t is without question that attorneys throughout the Commonwealth of Kentucky explain legal principles, provisions, exceptions, and elements of the law without citing the KRS." We disagree with the City that the explanation given at the meeting for going into closed session was sufficient notice of the specific provision authorizing the closed session. The language of the statute is exact: "Notice shall be given in regular open meeting of . . . the specific provision of KRS 61.810 authorizing the closed session. " (Emphasis added). The City's failure to cite the specific provision of the statute authorizing it to go into closed session is a violation of the Act.
Reason for the Closed Session . A public agency must give notice of the reason for going into closed session, again so that the public may assess the propriety of its action. At the January 18, 2018 meeting, the City Attorney's explanation for going into closed session was that "the issue involved 'equipment'" and that "no one is being fired or reprimanded but we are being proactive about ongoing issues and we are spearheading it before there is a broken law . . ." 1 This description of the reason for going into closed session does not enable the public to assess the propriety of its action. As this office has observed, "[T]he Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of the language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed" so as to avoid defeating the purpose which necessitated the closed sessions. 00-OMD-64, p. 6. The reason given by the City Attorney for the City Council going into closed session on January 18, based on the record in this appeal, was not sufficiently clear to give notice to the public of the reason for going into closed session and thus violated the Act.
Notice of the general nature of the business . We likewise take issue with the City's description of the general nature of the business to be discussed in closed session. The statute, KRS 61.815(a), requires the public agency to give notice of "the general nature of the business to be discussed . . . ." Again, the City Attorney's explanation for going into closed session was that "the issue involved 'equipment'" and that "no one is being fired or reprimanded but we are being proactive about ongoing issues and we are spearheading it before there is a broken law . . . ." We have already cited the City's response to this appeal (above) where it explained how it gave notice before going into closed session.
While too specific of a description (of the general nature of the business to be discussed) may defeat the purpose of going into closed session, too general of a description does not give sufficient notice of the nature of the business to be discussed. The statutory exception that the City relies upon, KRS 61.810(1)(f), is generally referred to as the "personnel" exception, and states the following as an exception to the requirement for holding open meetings:
Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.
Under this exception, it is demonstrably clear that something more descriptive than "that no one is being fired or reprimanded" is necessary to describe the general nature of the business to be discussed in closed session. The record on appeal does not provide us with any more specificity as to what was discussed in the closed session and so we are unable to provide further analysis of how the City could have better described the general nature of the business to be discussed.
To the extent that the City did not strictly comply with KRS 61.815(1)(a) as construed in Ratliff , above, we find that its actions violated the Open Meetings Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Appellant attributed this explanation to the City Attorney and the City's response to the appeal did not clearly rebut this statement of fact.