Monday, October 9, 2017

Open meetings - Closed Sessons


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


Distributed to:

Thomas Fox, J.D.
J. Casey McCall, Esq.
Hon. Richard W. Richards
Ms. Kimberly R. Richards

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation

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