23-OMD-078
April 3, 2023
In re: Daniel Konstantopoulos/Winchester-Clark County Industrial
Development Authority
Summary: The Winchester-Clark County Industrial Development
Authority (“the Authority”) did not violate the Open Meetings Act (“the
Act”) when it discussed a specific proposal from a business entity in
closed session under KRS 61.810(1)(g). The Authority was not required
to state the reason for the closed session in detail because KRS 61.815(2)
exempts discussions under KRS 61.810(1)(g) from the requirements of
KRS 61.815(1). The Authority did not violate KRS 61.835 with regard to
the recording of actions taken because it took no action in closed session.
Open Meetings Decision
On March 10, 2023, in a written complaint submitted under KRS 61.846(1),
Daniel Konstantopoulos (“Appellant”) alleged that the Authority had violated the Act
at its regular meeting on October 17, 2022, when it held a closed session under
KRS 61.810(1)(g). Specifically, the Appellant claimed the exception to the Act under
KRS 61.810(1)(g) did not apply because no representative of a business entity was
present in the closed session and because there was “no perceived threat that open
discussions would jeopardize the siting, retention, expansion, or upgrading of the
business.”1 The Appellant further alleged the Authority gave only a “generic or
vague” notice of the general nature of the business to be discussed, “did not state the
reason for the closed session,” and took final action in closed session by “determin[ing]
this opportunity was not a good fit for the industrial park,” all in violation of
KRS 61.815(1). Finally, the Appellant alleged the minutes of the meeting did “not
reflect the action taken” when the Authority made that determination in closed
1
On appeal, the Authority explains a business entity has made a proposal “to locate a large solid
waste transfer facility and associated offices in Clark County, Kentucky.”session, in violation of KRS 61.835. As a remedy for the alleged violations, the
Appellant requested that the Authority hold a special meeting “to consider the
proposal in open session in the presence of the public.”
In a timely response, the Authority denied any violation of the Act. Specifically,
the Authority stated its discussions were within the scope of KRS 61.810(1)(g)
because they were “discussions concerning a specific proposal” on “private or
proprietary matters which might jeopardize the business if disclosed to competitors.”
The Authority admitted no representative of “the industrial prospect” was present in
the closed session, but asserted “that is not a requirement under KRS 61.810(1)(g).”
Furthermore, the Authority stated it could not give more specific information about
the business to be discussed because it must “keep confidential all of the prospect’s
proprietary information” and allowing that information to become public would
“jeopardiz[e] the siting, retention, expansion, or upgrading of the business.” The
Authority admitted the Executive Director had stated in an email that “it was
determined this opportunity was not a good fit for the industrial park,” but denied
that the Authority had taken final action in the closed session. Rather, the Authority
characterized the Executive Director’s statement as “merely his impression of the
consensus of the discussions of the” Authority regarding the proposed location.
Finally, the Authority stated it would be willing to consider the matter again in a
closed session, or in open session “if the entity waives the privacy of its proprietary
information,” and to “render a final decision by vote.” This appeal followed.
Under KRS 61.810(1), “[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,” subject to certain
exceptions. Among these exceptions is KRS 61.810(1)(g), which exempts
“[d]iscussions between a public agency and a representative of a business entity and
discussions concerning a specific proposal, if open discussions would jeopardize the
siting, retention, expansion, or upgrading of the business.”
The Appellant claims a public agency’s “discussions concerning a specific
proposal” from a business entity are not exempt under KRS 61.810(1)(g) unless they
are “discussions between a public agency and a representative of a business entity.”
This Office disagrees. Since the enactment of KRS 61.810(1)(g), this Office has
consistently construed the exception as applying to a public agency’s discussions of a
proposal from a business entity, “with or without the representative” present, as long
as the stated conditions apply. 05-OMD-148; see also 16-OMD-129; 03-OMD-089; 99-
OMD-104; 94-OMD-119. The Appellant, however, argues this construction is
impermissible because KRS 61.810(1)(g) uses the conjunctive “and,” so that all
exempt “discussions concerning a specific proposal” must also be “between a public
agency and a representative of a business entity.” But it is a well-established rule
that a conjunctive word “may and should” be construed disjunctively “whenever suchconversion is required . . . to effectuate the obvious intention of the Legislature and
to accomplish the purpose or object of the statute.” Duncan v. Wiseman, 357 S.W.2d
694, 698 (Ky. 1961); see also Chilton v Gividen, 246 S.W.2d 133, 135 (Ky. 1952) (citing
Commonwealth v. Bartholomew, 97 S.W.2d 591 (Ky. 1936)).
Here, both “[d]iscussions between a public agency and a representative of a
business entity and discussions concerning a specific proposal, if open discussions
would jeopardize the siting, retention, expansion, or upgrading of the business” are
exempt under KRS 61.810(1)(g) (emphasis added). If KRS 61.810(1)(g) applied only
when a representative of the business were present, as the Appellant asserts, then
the statute would not use the conjunctive “and.” Rather, it would exempt from the
Act’s requirements “[d]iscussions between a public agency and a representative of a
business entity . . . if open discussions would jeopardize the siting, retention,
expansion, or upgrading of the business.” To interpret the statute as the Appellant
suggests, the Office would be required to ignore the omitted text, which is “and
discussions concerning a specific proposal.” To omit this language, however, would
ignore a core principal of statutory construction, which is to give meaning to every
word the legislature uses. See Ky. Unemployment Ins. Comm’n v. Wilson, 528 S.W.3d
336, 340 (Ky. 2017). Thus, KRS 61.810(1)(g) applies to “discussions concerning a
specific proposal” from a business entity, even when a representative of the business
is not present, so long as open discussion of such a proposal “would jeopardize the
siting, retention, expansion, or upgrading of the business.”
Next, the Appellant argues the conditions were not present for
KRS 61.810(1)(g) to apply because the Authority has not specified the manner in
which “open discussions would jeopardize the siting, retention, expansion, or
upgrading of the business.” On appeal, the Authority explains that the business
entity “provided detailed proprietary information about its plans for expansion and
relocation” and “wished that its information be kept private.” The Authority further
states “breaches of confidentiality jeopardize location decisions.” The Appellant has
presented no evidence that the nature of the entity’s proposal is public knowledge.
See, e.g., 16-OMD-129; 94-OMD-119 (finding KRS 61.810(1)(g) inapplicable when the
business proposal was publicly known). When the record is inconclusive as to whether
open discussions would jeopardize the siting, retention, expansion, or upgrade of a
business under KRS 61.810(1)(g), this Office cannot find a violation of the Act. See,
e.g., 17-OMD-044. Thus, in the absence of any evidence countering the Authority’s
position, this Office cannot find that the Authority violated KRS 61.810(1) by
conducting a closed session under KRS 61.810(1)(g).
Turning to the Appellant’s procedural arguments, the Appellant claims the
Authority violated KRS 61.815(1)(a) and (c). Under KRS 61.815(1)(a), “[n]otice 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 ofKRS 61.810 authorizing the closed session.” KRS 61.815(1)(c) provides that “[n]o final
action may be taken at a closed session.” However, even assuming the Authority did
not comply with those provisions, such noncompliance would not have violated the
Act. Under KRS 61.815(2), “[p]ublic agencies and activities of public agencies
identified in paragraphs (a), (c), (d), (e), (f), but only so far as (f) relates to students,
(g), (h), (i), (j), (k), (l), and (m) of subsection (1) of KRS 61.810 shall be excluded from
the requirements of” KRS 61.815(1). Here, the Authority’s activity in closed session
occurred pursuant to KRS 61.810(1)(g), which is one of the exemptions provided in
KRS 61.815(2). In Cunningham v. Whalen, 373 S.W.3d 438, 441 n.12 (Ky. 2013), the
Supreme Court of Kentucky stated that an exemption listed in KRS 61.815(2) relieves
a public agency “from the requirements of announcement of a closed session and a
public vote on holding a closed session, as well as the requirement that no final action
be taken.” See also 22-OMD-057. In light of these authorities, this Office cannot find
that the Authority violated the Act by failing to comply with KRS 61.815(1).
Finally, the Appellant claims the Authority violated KRS 61.835, which
requires that “[t]he minutes of action taken at every meeting of any such public
agency, setting forth an accurate record of votes and actions at such meetings, shall
be promptly recorded.” Although KRS 61.815(2) relieves a public agency from the
requirements of KRS 61.815(1), it does not relieve the agency from the requirements
of KRS 61.835. Here, the Appellant argues the Authority took “action” when it
determined the business entity’s proposal “was not a good fit for the industrial park”
and subsequently failed to record that action in its minutes. Under the Act, “action
taken” means “a collective decision, a commitment or promise to make a positive or
negative decision, or an actual vote by a majority of the members of the governmental
body.” KRS 61.805(3). This Office has recognized that a public agency’s final decision
to take no further action on a matter is a “final action” for purposes of
KRS 61.815(1)(c) See 22-OMD-187 n.3. Thus, such a decision would also constitute
“action taken” within the meaning of KRS 61.805(3). The Authority, however, states
it did not make a collective decision on the entity’s proposal on October 17, 2022, but
expressed a consensus “that the Executive Director [should] work with the industry
to find another location and assist the industry in any way possible.” The Authority
characterizes the October 17 meeting as “merely the first step in negotiation on the
proposal” and states it is still attempting to reach an agreement with the entity on a
location in Clark County. The Authority thus did not take any action in the closed
session and, accordingly, was not required to record such action in the meeting
minutes. Therefore, the Authority did not violate the 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#124
Distributed to:
Mr. Daniel Konstantopoulos
John Rompf, Esq.
Carlean Hefner, Chair