Opinion
Opinion By: Andy BeshearAttorney General;Gordon SloneAssistant Attorney General
Open Meetings Decision
The issue presented in this appeal is whether the City Council of Stanford ("City Council") violated the Open Meetings Act when it: (1) failed to describe the nature of the business for which it was going into closed session; (2) when it allowed persons other than City Council members into closed session; and (3) conducted a series of less-than-quorum meetings for the purpose of avoiding the requirements of the Act. For the reasons stated below, we find that the City Council violated the Act on each of those three issues.
On October 18, 2018, the City Council conducted two meetings. The first meeting was scheduled to begin at 6:00 p.m. and the first item on the meeting agenda was "Executive Session Under KRS 61.810(1)(c) Pending Litigation [.]" The second meeting was scheduled to begin at 6:30 p.m., and the agenda of the second meeting also designated it as a special meeting. The item of interest to this appeal on the second meeting's agenda was "Appointment of new council member to fill the unexpired term of John Sallee[.]"
According to Abigail Whitehouse, Freelance Reporter, The Interior Journal ("Appellant"), she attended the two meetings of the City Council on October 18, 2018. In a complaint to the City Council dated November 5, 2018, she stated that the City Council had violated the Open Meetings Act in three ways and requested that it discuss in open session the matters that were discussed in closed session on October 18 and commit to conducting future meetings in compliance with the Open Meetings Act.
Appellant's first complaint was that the City Council voted to enter into executive session, cited [KRS 61.810(1)(c)], and stated "pending litigation" as the reason for the closed session. Appellant claims that the City Council did not comply with KRS 61.815 in that it failed to state the general nature of the business to be discussed in closed session. Her complaint stated that "[a] reporter for The Interior Journal inquired about any and all topics which were to be discussed, to which the City Attorney responded 'proposed litigation, which would include a threat of litigation.'"
Appellant complained that the City Council violated the Act by selectively allowing non-Council members into the closed session: "A quorum of the City's Planning and Zoning Commission, as well as all members of the three-person Code Enforcement Board, and the Code Enforcement Officer, were invited into the secret session and remained until the council returned to an open meeting. . . . The council violated the Open Meetings Act when it allowed non-members to remain in the closed session beyond the time in which their attendance was necessary."
Finally, Appellant claimed that the City Council violated the Act by engaging in a series of less-than-quorum meetings to select a new council member to fill the unexpired term of a council member who had passed away in October.
Appellant filed her complaint with the City Council on November 5, 2018, but the City Council did not respond. 1 Appellant filed her appeal to this office on December 3, 2018.
John Hackley, attorney for the City Council, responded to the appeal on December 6, 2018. In response to the claim that the City Council had failed to give proper notice of the reason for going into closed session, he stated that:
Regarding the complaint directed toward the City's closed executive session, it was properly noted on the agenda, it concerned a specific threat of litigation, and the City Attorney disclosed information to the City Council directly related to a proposed mode or of addressing the threat, all matters being of the nature of Attorney/Client privileged information. The closed session was not called merely because of the presence of the City Attorney, but was called because of a specific threat of litigation against members of the council, and the city. The City Attorney had researched issues regarding said threat, and the appropriate action or inaction to be taken by City officials regarding said threat.
Analysis :
Violation of KRS 61.815(1)(a) . KRS 61.815(1)(a) provides:
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 Cty. 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 14 exceptions contained 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 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).
KRS 61.810(1)(c) allows a public agency to go into closed session for "[d]iscussions of proposed or pending litigation against or on behalf of the public agency [.]" (Emphasis added). Merely stating "pending litigation" as the reason for the closed session, accompanied by a reference to KRS 61.810(1)(c), does not meet the standard for describing the nature of proposed or pending 2 litigation. 10-OMD-166 (notice of proposed litigation may be less specifically described), see also 03-OMD-221. As clarified by the City Council's response to the appeal, the litigation was not actually pending; "it concerned a specific threat of litigation . . .." 3 A public agency must describe the business to be discussed in closed session with sufficient specificity to enable the public to assess the propriety of its action. The City Council failed to describe, at all, the nature of the business for which it went into closed session, or explain why the threatened litigation could not be described in open session. 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. To the extent the City Council failed to describe the business to be discussed in closed session in compliance with KRS 61.815(1)(a) as construed in Ratliff , above, we find that its actions violated the Open Meetings Act.
Presence of Non-members of the City Council in Closed Session . This office has long held that "selective admission" to closed sessions of public agencies 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. 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 advice on legal issues, or a third party may be needed to "contribute information or advice on the subject matter under discussion." 4 00-OMD-219, p. 5. Further, "In inviting non-members into a closed session, we believe that the agency has the duty to explain why such persons are invited into the session. " OAG 77-560, p. 2.
If the presence of non-Council members (Planning and Zoning Commission members, Code Enforcement Board members, and the Code Enforcement Officer) was required in the closed session, the City Council cannot be said to have violated the Open Meetings Act by permitting those persons to remain, but the City Council must provide an explanation for the necessity of their presence and they must leave after their presence is no longer required.
The City Council did not respond to The Interior Journal 's initial complaint, and its response to the Open Meetings appeal did not address the reason for selectively admitting persons into the closed session. Thus, we are left with no other conclusion but that the City Council violated the Act by selectively admitting certain persons, other than the City Council members and city attorney, into the closed session and allowed them to remain beyond the time in which their presence was necessary to the purpose of the closed session.
Series of Less-Than-Quorum Meetings . Appellant claimed that the City Council violated the Act by engaging in a series of less-than-quorum meetings to select a new council member to fill the unexpired term of a council member who had passed away in October. The agenda for the special meeting of the City Council at 6:30 p.m. listed "[a]ppointment of new council member to fill the unexpired term of John Sallee" as the last item to be discussed. Appellant stated:
Only one council member spoke on the subject, and stated, according to a report from The Interior Journal newspaper: "We decided, well, just talking individually, not in any session together, that it's best to just look at the last four years and see who was on the (2014) ballot," said City Council member Naren James." (Oct. 25 edition).
Appellant's complaint to the City Council stated that this was an admission by the City Council member that it had already discussed this matter and made a decision on the appointment of the new member prior to the public meeting. "The appointee had already been contacted about the decision and was present at the Oct. 18 meeting, during which he was formally sworn in as the late council member's replacement." The City Council did not respond to the initial complaint and it's response on appeal to this issue was that it "will be addressed in a public session. "
KRS 61.810(2) states, in relevant part:
Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section.
The agenda for the 6:30 p.m. special meeting of the City Council listed "Appointment of new council member to fill the unexpired term of John Sallee." The minutes of that meeting reflect that this matter was moved to be the first item of business of the meeting, and that a motion was made and approved to appoint a specific person to the City Council. That person was present and was sworn in by the mayor. The unrefuted statement of Council member James, and the presence at the special meeting of the person who the City Council approved as a member, indicates a degree of planning and apparent discussion of public business by some members of the City Council. The City Council did not respond to the initial complaint and offered no facts or arguments on appeal to refute Appellant's statement of the facts or her conclusions regarding the decision to appoint a new member to fill the City Council vacancy. That being the case, we have no alternative but to conclude that the City Council conducted a series of less-than-quorum meetings; made a decision regarding the appointment of a new member in those meetings; and that those meetings were made for the purpose of avoiding the requirements of the Open Meetings Act. These actions violated KRS 61.810(2).
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 Pursuant to KRS 61.846(1), in relevant part:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.
2 Pending" is defined, in relevant part, as "Remaining undecided; awaiting decision <a pending case>," Black's Law Dictionary (10th ed. 2014).
3 The agenda for the special meeting incorrectly identified the reason for the closed session as "pending litigation," instead of "proposed litigation." As the City Council failed to describe the general nature of the proposed litigation, this distinction does not affect our analysis.
4 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 where the agency "explain[s] why such persons are invited into the session." OAG 77-560, p. 2, quoted in 00-OMD-219, p. 5. Such limitations do not normally apply to an agency employee or the agency's attorney.