NOT TO BE PUBLISHED
February 28, 1994
In Re: Finley Willis, Jr./Anderson County Board of Education
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by Finley Willis, Jr., President and General Manager of Radio Station WKYL-FM in Lawrenceburg concerning activities of the Anderson County Board of Education and his exclusion from a portion of the Board's meeting. Mr. Willis' letter of appeal was received by the Attorney General on January 28, 1994.
In a letter to the Acting Chairman, dated December 7, 1993, the Board voted to go into closed session to "discuss land acquisition and personnel." Mr. Willis was then asked to leave the meeting room. When Mr. Willis was invited to return to the meeting the Board members voted to "ratify and confirm the actions of the Board Attorney on land acquisition."
Mr. Willis maintained that the Board failed to fully comply with KRS 61.815(1) concerning the requirements for conducting a closed session and he disagreed with the application of KRS 61.810(1)(b) to the matter under consideration. He also complained about the Board's motion to ratify as being in violation of the requirement that the exact nature of a decision must be made a matter of public record.
In a letter to Mr. Willis, dated December 8, 1993, Walter Patrick, Esq., responded on behalf of the Anderson County Board of Education. He cited KRS 61.810(1)(b) to support the closed session relative to the property acquisition matter because publicity would likely affect the value of that property.
Mr. Patrick further stated as follows:
During a closed session of the special meeting of the Board of Education, aforementioned, I reported to the Board upon the progress of my negotiations with the property owners of the proposed new middle school site. Following my report, I requested the Board to adopt a motion ratifying and confirming my negotiations made prior to this particular meeting, which request was for my personal protection since the prior negotiations have not resulted in a written agreement between the Board of Education and the property owners.
KRS 61.815 sets forth the requirements for conducting closed sessions. KRS 61.815(1)(a) provides that notice shall be given in the regular open session of the general nature of the business to be discussed in the closed session, the reason for the closed session, and the specific section of KRS 61.810 authorizing the closed or executive session.
The Board of Education did not comply with the statutory requirements of KRS 61.815(1)(a) relative to conducting a closed session.
While the Board of Education did not mention KRS 61.810(1)(b) and its application to the matters discussed in the closed session, that statute authorizes a public agency to go into a closed or executive session relative to:
Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency.
In his letter to Mr. Willis of December 8, 1993, Mr. Patrick specifically cited KRS 61.810(1)(b) and maintained that publicity would affect the value of the property involved whether the school board acquired that property by negotiations or by condemnation.
In 93-OMD-56, copy enclosed, we upheld the utilization of KRS 61.810(1)(b) by a public agency where the acquisition of property was involved and publicity would be likely to affect the value of that property. In OAG 80-530, copy enclosed, we dealt with KRS 61.810(2) which later was recodified as KRS 61.810(1)(b). That opinion said in part that confidentiality is permissible only when the public interest will be directly affected financially. Mr. Patrick has stated that publicity would likely affect the value of the property in question. This office in OAG 77-577, copy enclosed, said in part that KRS 61.810(2), later recodified as KRS 61.810(1)(b), could be cited to justify a closed meeting where a condemnation proceeding was being discussed.
In regard to Mr. Willis' allegation that the Board's ratification of the actions of the school board's attorney violated the terms and provisions of the Open Meetings Act, it is our decision that such action is not a statutory violation.
The Board's motion of ratification was made in an open and public session of the meeting. As far as this office can determine, the Board only ratified that its attorney had been negotiating. The ratification did not constitute the approval of any purchase of land or the setting of a purchase price for that land. There was no commitment of public funds at that point and no final action of any kind relative to the acquisition of property.
It is the decision of the Attorney General that while the school board did not comply with the requirements of KRS 61.815(1)(a) concerning the holding of a closed session, the school board has demonstrated that its holding of a closed session to discuss the acquisition of property is supported by KRS 61.810(1)(b) as publicity would be likely to affect the value of the property involved. The school board's motion of ratification was consistent with the terms and provisions of the Open Meetings Act.
Either party to this appeal may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that
action or in any subsequent proceedings under the Open Meetings Act.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
Finley Willis, Jr.
President and General Manager
Radio Station WKYL-FM
1010 Industry Road
Lawrenceburg, Kentucky 40342
Walter Patrick, Esq.
Counsel, Anderson County
Board of Education
Lawrenceburg, Kentucky 40342