September 11, 1996

In re: LaMar Bryan/Christian County Board of Education

Open Meetings Decision

This matter comes to the Attorney General as an appeal by LaMar Bryan, City Editor, Kentucky New Era, in connection with his complaint against the Christian County Board of Education.

In a letter to Christian County Board of Education, Daniel N. Thomas, Board Chairman, dated June 28, 1996, Mr. Bryan challenged the Board's decision to go into a closed session during its June 20, 1996 meeting to discuss advice from an attorney regarding a proposed amendment to the school system's drug testing policy. Neither the school board nor Mr. Thomas sent a written response to Mr. Bryan which resulted in an appeal being filed with this office under the provisions of the Open Meetings Act.

This office, in 96-OMD-175, decided that the school board's failure to issue a timely written response constituted a violation of the Open Meetings Act. The school board was directed to immediately respond in writing to Mr. Bryan relative to his complaint and Mr. Thomas's letter, dated August 19, 1996, is an apparent attempt to comply with the decision of this office.

Mr. Thomas, in his letter to Mr. Bryan, said he had advised Mr. Bryan that the purpose of the closed session was so that Mr. Thomas could communicate to the other board members advice received from a Frankfort attorney retained by the local school board. What was involved was “individual legal advice as to each member's potential personal liability under the provisions of pertinent Section 1983 law, and also potential defenses that were prevalent to the Marshall County Plan, if adopted by the Christian County Board of Education.” Mr. Thomas maintained that such communication in a closed meeting is permissible under the attorney-client privilege.

In his letter of appeal to this office, received August 26, 1996, Mr. Bryan states that the issue is whether legal advice related to the school board's drug testing policy should have been discussed in a closed session. He also said that at no time have the members of the school board claimed that the matter of the adoption of a drug testing policy is subject to pending or threatened litigation.

It appears that the two parties do not agree as to the issue involved. Nobody from this office attended the meeting in question so we, obviously, have no firsthand knowledge as to what transpired. In addition, the record available to this office in regard to this appeal is rather limited. We, therefore, will briefly discuss the issues raised by both parties.

Among the exceptions to the general requirement that meetings of public agencies be open to the public is KRS 61.810(1)(c) to the effect that a meeting may be closed concerning discussions of proposed or pending litigation against or on behalf of the public agency. In regard to the litigation exception this office said in 93-OMD-119, copy enclosed, as follows:

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 minutes of the school board meeting of June 20, 1996 (at page 296 of the document furnished to this office) indicate that the board went into closed session in part “to allow the communication of the attorney client advice from Mr. Chenoweth to the Board.” It would appear that the school board was attempting to utilize the attorney-client privilege to go into the closed session so that advice received from the Board's attorney could be communicated to the Board members.

Another exception to the general requirement that meetings of public agencies be open to the public is KRS 61.810(1)(k) to the effect that meetings are closed when federal or state law specifically require them to be conducted in privacy. By way of analogy see KRS 61.878(1)(k) and (l) of the Open Records Act relative to nondisclosure of public records because of federal and state enactments making such materials confidential. While this office has not dealt with the attorney-client relationship within the context of an appeal under the Open Meetings Act, we have on a number of occasions decided appeals under the Open Records Act relative to the attorney-client relationship.

An enactment codified as Rule 503 of the Kentucky Rules of Evidence (formerly codified as KRS 422A.0503) deals with the “lawyer-client privilege.” Under “General rule of privilege,” it is stated in part that “A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client[.]”

In 94-ORD-88, copy enclosed, this office, in analyzing the attorney-client privilege, said in part as follows:

The privilege thus consists of three elements: The relationship of attorney and client, communication by the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed. R. Lawson, Kentucky Evidence Law Handbook, § 5.10 at 232 (1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). Its purpose is to insure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. Of course, the privilege “must be strictly construed and given no greater application than is necessary to further its objectives.” Kentucky Evidence Law Handbook, § 5.10 at 232.

As noted in 94-ORD-88, an agency can be a “client” and an agency attorney can function as an “attorney” within the relationship contemplated by the privilege. The school board apparently requested a legal opinion from its Frankfort based attorney on issues related in part to potential liability of school board members. The attorney responded and the board chairman was to communicate that advice to the other board members during a portion of the June 20, 1996 meeting. The attorney as part of a professional relationship with the Board communicated advice to a Board member who in turn was to relay that advice to the other Board members. The school board has made constant and continuing efforts to insure the confidentiality of the information communicated by its attorney. Every attempt has been made to insure that the information obtained is protected from general disclosure and the attorney-client privilege has been invoked both at the meeting in question and in response to the complaint filed under the Open Meetings Act.

Other recent decisions of this office pertaining to the attorney-client privilege within the context of an appeal under the Open Records Act are 94-ORD-99 and 95-ORD-18, copies of which are enclosed.

Before concluding this decision it must be pointed out that the school board's belated response to the complaint is procedurally deficient in a number of instances. KRS 61.846(1) requires in part that the public agency's response include a statement of the specific statute relied upon to justify the agency's denial and a brief explanation of how that statute applies to the situation under consideration. The school board's response of August 19, 1996 did not satisfy the requirements of the statute.

It is the decision of the Attorney General that even though the written response of the public agency was procedurally deficient, the public agency, while unable, on the basis of the evidence presented, to rely upon the litigation exception set forth in KRS 61.810(1)(c), could properly rely upon the attorney-client privilege to close that portion of the meeting where the advice of the agency's legal counsel was communicated to the members of that agency.

A party aggrieved by this decision may appeal it 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 proceeding under the Open Meetings Act.

A. B. Chandler III

Attorney General

Thomas R. Emerson Assistant Attorney General


Copies of this decision

have been distributed to:

LaMar Bryan

City Editor

Kentucky New Era

1618 East Ninth Street

P.O. Box 729

Hopkinsville, KY 42241-0729

Daniel N. Thomas

Thomas and Ison

1302 South Main Street

P.O. Box 675

Hopkinsville, KY 42241-0675

Robert L. Chenoweth

Chenoweth Law Office

121 Bridge Street

Frankfort, Kentucky 40601