Monday, October 9, 2017

Open meetings - Closed Sessons


17-OMD-206

October 5, 2017


In re:  Thomas Fox/City of West Buechel

Summary: City of West Buechel violated the Open Meetings Act by failing to respond to an open meetings complaint, failing to vote before entering a closed session, failing to give notice of the reason for a closed session or the nature of the business to be discussed, failing to cite an exception under KRS 61.810(1), and discussing public business in a closed session without an applicable exception.

Open Meetings Decision

The question presented in this appeal is whether the City of West Buechel violated provisions of the Open Meetings Act when, at meetings on June 13, 2017, and August 8, 2017, the city council went into closed session to discuss public business without a public vote and without giving public notice of the nature of the business to be discussed, the reason for the closed session, or the provision of the Open Meetings Act that authorized the closed session.  For the reasons that follow, we find that the council’s actions violated the Act.

In a complaint to Mayor Richard W. Richards dated September 12, 2017, Thomas Fox alleged that at the June 13 meeting the council entered a closed session with no vote beforehand, and with no notice except for an announcement by the city attorney “that the closed session was for a ‘quasi-judicial’ function without any indication what ‘quasi-judicial’ function was being performed.”  As for the August 8 meeting, Mr. Fox alleged that the council went into closed session in a similar manner, with no vote of the members and prefaced only by the following discussion:

Attorney Casey McCall to Mayor Richards:  “Just say there are two issues that are to be discussed.  By statute they can be discussed in closed session.”
Mayor Richards:  “There’s going to be two issues discussed.  Per KRS they need to be discussed in a private separate session.  So at this time we would ask, if you all wouldn’t mind, just stepping outside the door…”
Council Member Tony Clark:  “Motion?”
Council Member Brenda Kay Moore:  “I make a motion that we go into executive session to discuss private matters.”
Mayor Richards:  “I was going to ask for that after I explained to the people what we were doing.”
Clerk Kim Richards:  “Need a second.”
Council Member Ruth Mosely:  “Second.”
Mayor Richards:  “Second by Council Mosely.  Thank you, Mrs. Mosely.”
Clerk Kim Richards:  “Tape recorder is off.”

As a remedy for the alleged violation, Mr. Fox proposed that the mayor be made aware of the penalty for an open meetings violation and issue a written specification of matters discussed in the closed sessions.  After receiving no response to his complaint, Mr. Fox initiated this appeal on September 21, 2017.

KRS 61.846(1) requires a public agency, after receiving a complaint of an open meetings violation, to “determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, … whether to remedy the alleged violation pursuant to the complaint,” and to “notify in writing the person making the complaint, within the three (3) day period, of its decision.”  Since no such response was issued within that period, we necessarily find the city in violation of KRS 61.846(1).

In a response to the appeal dated September 27, 2017, on behalf of the city, attorney John Casey McCall denies none of the factual allegations made by Mr. Fox.  He offers the following by way of explanation:

No action was taken in the executive session.  The only items discussed in the closed session meetings were a personnel issue regarding residency of one of the council members in which the attorney gave an update on the residency status of one of the council members, which included comments regarding a request for help from the Attorney General’s Office.  Again, no action was taken besides simply to inform the council members of the on-going action.
The second item that was discussed, which is exempt from the open records [sic], was the matter of an on-going investigation by law enforcement into monies stolen from various bank accounts of the City.  To have discussed this at open session may have compromised the on-going investigation and should have been exempt.  Again, no action by the City took place at either of the closed sessions for the June meeting and the August meeting.  The City rarely has closed session regarding any matters as everything should be open to the public.  However, in these two very specific instances, I was concerned with impeding or obstructing an on-going criminal investigation into matters concerning the City’s bank accounts.

(Emphasis added.)

  KRS 61.810(1) requires, with certain specific exceptions, 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.”  (Emphasis added.)  Regardless of whether action is taken, therefore, no discussion of public business may be held in closed session unless an exception listed in KRS 61.810(1) applies.

KRS 61.815(1)(a) requires that prior to a closed session, notice must be given in open session “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.”  It is undisputed that the city council failed to cite a specific provision authorizing the closed session during either the June or the August meeting (nor, in fact, has counsel cited any such provision on appeal).  Thus, the closed session was conducted in violation of the Open Meetings Act.  09-OMD-169.

Furthermore, it is not sufficient to state the nature of the business to be discussed with a simple label such as “litigation” or “personnel”— or, as in this case, “private matters” or “quasi-judicial function.”  See, e.g., 03-OMD-221 (“litigation”); 12-OMD-102 (“personnel”).

Nor do such labels give an indication of the reason why the closed session is necessary.  As this office has long recognized:

[T]he Open Meetings Act . . . contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed.  In construing KRS 61.805 to 61.850, the Supreme Court observed:

The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions.  The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.

Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1987).  With specific reference to KRS 61.815, the 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.  In view of the disparate nature of the twelve [now thirteen] exceptions, 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), we believe that the notification must include both a statement of the exception authorizing 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 (citation form updated).  Merely invoking a cursory phrase such as “private matters” or “quasi-judicial function” amounts to less than “agency recitation of language of the exception authorizing the closed session,” and therefore is clearly inadequate to comply with KRS 61.815(1).

Additionally, it is apparent from the record that no majority vote of the council members was conducted prior to the closed sessions.  KRS 61.815(1)(b) provides:  “Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session.”  Therefore, the city council failed to meet any of the procedural requirements for a closed session under KRS 61.815(1).

We further conclude that both closed sessions were substantively in violation of KRS 61.810(1), as none of the thirteen exceptions listed in that subsection are manifestly applicable to the public business discussed.  There is no specific provision for discussing the “residency status” of a member of the public body.  Even if the matter were characterized generally as “a personnel issue,” KRS 61.810(1)(f) is limited to “[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student….  This exception shall not be interpreted to permit discussion of general personnel matters in secret.”  (Emphasis added.)  “Consistent with the rule of strict construction codified at KRS 61.800, [the Attorney General] has narrowly read the terms appointment, discipline, and dismissal to insure that the words are given their ordinary, and not a strained or overly expansive, meaning.”  10-OMD-023 (citing Lynch v. Com., 902 S.W.2d 813, 814 (Ky. 1995)).  As there is no indication that anything in the nature of a removal proceeding for the member was at issue, we do not find that KRS 61.810(1)(f) would have been applicable to that discussion in closed session, had that provision even been cited by the council.

Furthermore, there is no exception under KRS 61.810(1) which would apply generally to discussion of ongoing law enforcement investigations.  Accordingly, we find that the closed sessions held by the City Council of West Buechel in June and August 2017 were in violation of both KRS 61.810(1) and KRS 61.815(1).  The failure to respond to Mr. Fox’s open meetings complaint within three business days was a violation of KRS 61.846(1).

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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

Andy Beshear
Attorney General


James M. Herrick
Assistant Attorney General

#384

Distributed to:

Thomas Fox, J.D.
J. Casey McCall, Esq.
Hon. Richard W. Richards
Ms. Kimberly R. Richards
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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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This is not legal advice and I am not a lawyer.

Saturday, July 22, 2017

Kill the lawyers



Many before me have written about the possibility of eliminating lawyers. It was Shakespeare who wrote in Henry VI, "The first thing we do, let's kill all the lawyers."

It's an impractical goal in an age of specialization, and in which the lawyers have insinuated themselves into every aspect of modern life. The necessity of lawyers is bonded to our national ideals, as a nation of laws and not of men; or a nation of laws and not of church authority. Lawyers are indispensable artifacts of the way we live and what we value. Looking on the bright side, it is lawyers and the judicial system which allows us to resolve disputes without bloodshed. Not like the old days.

But, giving lawyers their due does not require total capitulation. There are, in fact, many lawyers who are interested in noting more than to line their own pockets at anybody's expense. That is just a fact, and it is not intended as an indictment of all honest hard-working lawyers. But, the ancient question, "How many lawyers does it take to skin a client?" has always been answered, "Two. One of whom is supposedly working for the client."

Lawyers are expensive, and paying for lawyers is a game for the affluent. The less affluent suffer, or do without. Win or lose, it is always expensive in one way or another.

Just as you don't need a doctor for every little cut or scrape, you don't actually need a lawyer for every trifling legal matter. This is assuming you can tell the difference between when you do need a lawyer and when you do not, but there is an inherent danger in any system that is structured so that defending one's own vital interests is dependent upon pricey outside assistance.

The legal self-help movement has a long history, going back at least to 1845, when Thomas Wooler published his Every Man His Own Attorney. Wooler wrote, 
"When attorneys are employed, they must be paid; and their charges are not always regulated either by their abilities, or their service to a client, but by their own desire to make as much as they can. This evil can only be remedied by making their clients well informed on common subjects, and able to see what course they are taking in matters of more intricacy."
The lawyer's Code of Professional Responsibility and the Model Rules of Professional Conduct reflect an idealistic goal of the profession pursuing legal education of the public, but the extent of what education that actually happens does not go beyond pointing out the need to hire an attorney. The Canadian legal system recognizes that Lawyers "share responsibility for ensuring that broader society has a knowledge and understanding of the law and an appreciation of the values advanced by the rule of law." Robert Bell & Caroline Abela 
"The question of whether lawyers have an ethical duty to perform public service--and, in particular, whether the obligation requires that a percentage of time be devoted to providing free legal services to the poor has a disjointed and uneven history. Leaders of the bar, espousing various and often conflicting views of morality, compassion, noblesse oblige, and individual autonomy, have contributed to this state of affairs, creating a complicated web of vague ideals that today jeopardizes the legal profession's sense of its own public obligations. On the one hand, the legal profession remains dedicated to the traditional view that public service is a matter of personal charity, to be performed at the discretion of the individual attorney. And yet, despite the prevalence of this dominant notion, an undercurrent of thought rejects the relativistic approach to public service, arguing instead that lawyers have a professional responsibility to help assure that legal services are available to all, including those who cannot afford to purchase representation on the open market. The Code of Professional Responsibility and the Model Rules of Professional Conduct reflect both notions of public service, sending mixed signals to members of the bar as to whether their professional duties include the obligation to render free legal services to those in need." - The lawyer's duty of public service: More than charity? - 96 W. Va. L. Rev. 367, Winter, 1993/1994
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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Wednesday, April 26, 2017

Armstrong v. West Buechel

Wm. Vernon Armstrong, former West Buechel City employee, filed a civil complaint in the US District Court today, against The City and Richard Richards individually. The complaint alleges racial discrimination and wrongful termination by the defendants. The suit seeks back pay, reinstatement and attorney fees.

Armstrong v. West Buechel by Southern Specialty Law Publishing on Scribd



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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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This is not legal advice and I am not a lawyer.

West Buechel meeting update

West Buechel, Ky

After being advised of the Open Meetings Act violation, 4 of 6 Cty Council members decided not to attend. The meeting was either adjourned by Mayor Richards or canceled by City Attorney Casey McCall for lack of a quorum. Neither Mayor Richards nor City Clerk-Treasurer Kim Richards admitted any responsibility for the screw up.

Nothing new

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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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This is not legal advice and I am not a lawyer.

Tuesday, April 25, 2017

West Buechel Open Meetings Complaint

2017 04 25 Open Meetings Complaint by Southern Specialty Law Publishing on Scribd

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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

----------- oOo ----------

Self-help Law Books on Amazon
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This is not legal advice and I am not a lawyer.

Friday, March 17, 2017

West Buechel's mighty fine City gubment

West Buechel's mighty fine gubment enacted a gross receipts business tax this week using standard West Buechel gubment operating procedures . . . illegally.

One City Council member was absent from this month's Council meeting due to being in rehab recovering from a stroke.

Mayor Ricky Richards mighty fine plan was to finagle a proxy from a guy in a hospital bed to get the votes he needed for the Mayor's beloved and long sought after business tax hike.

The Council vote this Tuesday was three against and two in favor of the gross receipts tax. With the proxy vote from the MIA Council member, it was a 3 - 3 tie, which Mayor Ricky broke by voting in favor of higher taxes.

West Buechel's mighty fine City Attorney, John Casey McCall, opined that a proxy vote from an absent Council member was a mighty fine way to do business in Kentucky, and it was all good with him.

I suspect the final chapter on this mighty fine gross receipts Ordinance has not yet been written.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

----------- oOo ----------

Self-help Law Books on Amazon
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This is not legal advice and I am not a lawyer.