TO BE PUBLISHED
October 15, 1993
IN RE: R. Keith Cullinan, Esq./Lawrence L. Jones, III, Esq.
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal from the written response of Lawrence L. Jones, III, Esq., legal counsel to the Louisville Firefighters Pension Fund. R. Keith Cullinan, Esq., has requested that the Attorney General review Mr. Jones' response to his assertion that the board of trustees of the Fund improperly invoked the exception to open and public meetings set forth in KRS 61.810(1)(c).
In a letter to the chairman of the pension fund, dated August 19, 1993, Mr. Cullinan stated that the pension fund improperly went into executive session to discuss certain litigation not involving the pension fund (except one matter purportedly concerning pension fund litigation) but involving other litigation pertaining to the Louisville Policemen's Retirement Fund, the city of Louisville and other private parties. Mr. Cullinan requested that any further discussions of litigation not involving the Louisville Firefighters Pension Fund be conducted in open sessions.
Mr. Jones responded to Mr. Cullinan in letters dated August 24 and August 30, 1993. In support of the position taken by the pension fund's board he cited KRS 61.810(1)(c). He stated that all of the cases regarding the Policemen's Retirement Fund that his client is monitoring have identical issues with those involving his client. Those cases are being monitored because of proposed or pending litigation against or on behalf of his client.
In his letter of appeal to the Attorney General's Office, dated September 1, 1993, but not received until September 7, 1993, Mr. Cullinan states in part relative to the utilization of KRS 61.810(1)(c), an exception to the open
meetings provisions involving discussions of proposed or pending litigation against or on behalf of the public agency:
I respectfully submit that the discussion of matters of litigation involving the Police Pension Fund and other parties does not come within any exception to the Open Meetings Law available to the [Firefighters Pension] Fund, and that any such discussions must be conducted only in an open meeting.
Mr. Jones, in a letter to the Attorney General, dated September 9, 1993, a copy of which was sent to Mr. Cullinan, stated in part that the pension fund he represents has been threatened with litigation by legal counsel for a number of former firefighters. In addition, he said that Mr. Cullinan had told the administrator of the pension fund that a lawsuit would be filed and the fund or persons connected with the fund might be named in that suit.
In connection with the monitoring of lawsuits involving another pension fund Mr. Jones said in part at pages 1-2 of his letter as follows:
The Firefighters Pension Fund is monitoring various lawsuits involving the Policemen's Pension Fund as our Board undertakes its consideration of a response to the claim from counsel for the ex-firefighters and its own proposed litigation against the City. The reason the cases involving the Policemen's Pension Fund are pertinent to us is that the ordinances establishing the Policemen's Pension Fund and the Firefighters Pension Fund are basically identical and the issues in the litigation threatened by the ex-firefighters and proposed by the Board would be identical.
Among the exceptions to open and public meetings are the provisions of KRS 61.810(1)(c), formerly codified as KRS 61.810(3), which permit public agencies to conduct in closed or executive sessions "Discussions of proposed or pending litigation against or on behalf of the public agency."
In OAG 78-227, copy enclosed, we said in part that, "When an agency is a party, either plaintiff or defendant, in litigation it has the right to keep its litigation strategy confidential when necessary."
This office has also stated that the terms "proposed or pending" should not be construed to authorize a closed session of a public agency when the possibility of litigation is remote. In OAG 84-240, copy enclosed, we said that where there had been "direct suggestions of litigation" conditioned upon the occurrence or nonoccurrence of a special event, the possibility of litigation was sufficiently great to warrant the public agency's invocation of KRS 61.810(3), now codified as KRS 61.810(1)(c).
In OAG 91-141, copy enclosed, we again dealt with the litigation exception to open and public meetings. We concluded that under the applicable facts it was not necessary at that time for the public agency to go into closed session to discuss its litigation strategy.
Before proceeding with our analysis of this specific appeal we need to keep in mind the statement of policy set forth by the General Assembly. KRS 61.800 states as follows:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
Thus the litigation exception, like the other exceptions to the basic policy of open and public meetings, must be narrowly construed. This office cannot condone the invoking of KRS 61.810(1)(c) when the agency in closed session does nothing more than monitor cases which have not been filed against or on behalf of the public agency attempting to utilize the exception. To do so would be an improper and unauthorized expansion of the exception. Generally, the discussion of cases in which the public agency is not a party plaintiff or defendant must be conducted in open and public sessions.
When the public agency has become a party plaintiff or defendant in a lawsuit, when a public agency has been
threatened with litigation, or when the chance of litigation involving that agency is more than a remote possibility, the agency can then legally and properly invoke the exception set forth in KRS 61.810(1)(c). The public agency can at that time discuss in a closed session such matters as strategy, tactics, possible settlement and other matters pertaining to that case or that anticipated or probable case. The strategy and tactics adopted may utilize concepts, principles, defenses, theories, claims or allegations advanced or set forth in the monitored cases involving the other public agencies. We emphasize that the closed session must be conducted for the stated purpose of discussing the agency's current litigation situation. If the agency goes into closed session solely to discuss litigation to which the agency is not a party, then the agency is in violation of the Open Meetings Law, even if the agency has been sued or threatened with litigation.
In meeting the statutory obligation imposed upon the Attorney General by KRS 61.846(2) to determine if the public agency violated the provisions of the Open Meetings Act, it is our decision that a public agency cannot invoke KRS 61.810(1)(c) to discuss, generally, in closed sessions, cases which have not been filed against or on behalf of that particular public agency. To the extent that the Louisville Firefighters Pension Fund went into closed session merely to discuss litigation to which it was not a party, it was in violation of the Open Meetings Law. To the extent that the closed session involved discussion of threatened litigation, the closed session was proper.
Either Mr. Cullinan or Mr. Jones may challenge this decision by filing an appeal with the appropriate circuit court within 30 days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
R. Keith Cullinan, Esq.
One Corporate Plaza, The 22nd Floor
220 W. Main Street
Louisville, Kentucky 40202
Lawrence L. Jones, III, Esq.
Wyatt, Tarrant & Combs
Louisville, Kentucky 40202