June 16, 1997

In re: Mark R. Chellgren/Kentucky Employers' Mutual Insurance Authority

Open Meetings Decision

This matter comes to the Attorney General as an appeal by Mark R. Chellgren in connection with his complaint against the Kentucky Employers' Mutual Insurance Authority.

In a letter to legal counsel for KEMI, dated April 22, 1997, Mr. Chellgren referred to an earlier letter from the same legal counsel advising that KEMI's Board of Directors had decided to appeal a decision rendered by the Attorney General in connection with an appeal under the Open Records Act (97-ORD-66). Mr. Chellgren said that KEMI is subject to the provisions of the Open Meetings Act and he questioned the circumstances involving the meeting at which KEMI's Board of Directors made the determination to appeal the decision of the Attorney General rendered under the Open Records Act.

Legal counsel for KEMI replied to Mr. Chellgren in a letter dated May 8, 1997, and advised in part as follows:

The decision to appeal the Attorney General's decision was made in closed session during the meeting of KEMI's Board of Directors held on March 19, 1997. Although the Attorney General had not yet served his decision on March 19, you had already raised the issue of whether you were entitled to see KEMI's records, and litigation over the issue was more than a remote possibility; indeed, litigation appeared likely. Consequently the Board decided at its March 19 meeting that KEMI should defend any litigation you initiated to obtain the records, including opposing any request for an opinion from the Attorney General, and, if necessary, appealing the Attorney General's decision to Circuit Court.

Page two of legal counsel's letter of May 8, 1997, included the following paragraph:

This decision by KEMI's Board was made in closed session pursuant to the authority of KRS 61.810(1)(c) and KRS 61.815(2). Pursuant to KRS 61.815(2), KEMI is not required to furnish you with any documentation or minutes relating to the decision, and was not required to give notice that this issue would be discussed by the Board.

Mr. Chellgren responded to legal counsel's letter in a letter dated May 12, 1997. He not only expressed skepticism concerning statements involving the decision of the Board of Directors of KEMI on March 19, 1997, to appeal a decision which was not rendered until April 17, 1997, but he challenged legal counsel's interpretation of the Open Meetings Act.

The letter of appeal from Mr. Chellgren was received by this office on June 2, 1997. He said in part that the KEMI Board of Directors is prohibited from making any decision about initiating litigation during a closed or executive session of a meeting. Mr. Chellgren, on June 4, 1997, furnished this office with a copy of the minutes of the March 19, 1997 meeting of KEMI's Board of Directors. While there are references to motions to go into closed session for several purposes, there is no reference to a motion to go into a closed session to discuss proposed or pending litigation.

Additional responses were received from legal counsel for KEMI and from Mr. Chellgren on the afternoon and evening of June 11, 1997.

KEMI exists pursuant to KRS 342.801 to KRS 342.843. It is defined in part in KRS 342.803 as a nonprofit, independent, self-supporting de jure municipal corporation and political subdivision of the Commonwealth and a public body corporate and politic.

While KEMI would certainly appear to be a "public agency" as that term is defined in various subsections of KRS 61.805(2), KRS 342.841 specifically states that it is subject to the provisions of the Open Meetings Act. That statute provides:

The authority [KEMI] shall comply with KRS Chapter 61 in regard to open meetings and the conduct of ordinary business, except that proceedings which would provide an unfair competitive advantage to private sector competitors providing workers' compensation coverage in the Commonwealth may be closed to the public.

While the minutes of the March 19, 1997 meeting of the Board of Directors of KEMI do not indicate that the Board went into a closed session to discuss litigation or that any decision was made to take action relative to any particular litigation, legal counsel has stated in writing that a decision to litigate was made in a closed session during that specific meeting.

KRS 61.810(1)(c) does authorize a public agency to go into a closed session relative to"Discussions of proposed or pending litigation against or on behalf of the public agency." KRS 61.815, however, sets forth the procedures for a public agency to follow in connection with conducting a closed portion of an otherwise public meeting. It also lists the restrictions imposed upon a public agency conducting a closed session including the directive that, "No final action may be taken at a closed session[.]" KRS 61.815(1)(c).

KRS 61.815(2) is somewhat confusing in that it appears to remove all of the conditions and restrictions imposed by KRS 61.815(1). In 94-OMD-78 and OAG 80-248, copies enclosed, we dealt with KRS 61.815 and, while we acknowledged that the statute in effect both in 1980 and in 1994 was and is not clear, we said in part:

We believe that the legislative intent is that agencies, per se, which are exempt from complying with the Open Meetings Law, such as the Parole Board, juries, the Governor's cabinet, committees of the General Assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in KRS 61.815, and that agencies which are not exempt per se but which go in[to] closed session to deal with an excepted subject matter must observe those formalities.

Both KRS 61.805(2) and KRS 342.841 indicate that KEMI is subject to the Kentucky Open Meetings Act. While a public agency may meet in a closed session to discuss proposed or pending litigation, including topics such as litigation tactics and strategy, a final decision as to whether to litigate a particular situation cannot be made in a closed session. If, as legal counsel states, the Board of Directors of KEMI decided in a closed session to file suit in regard to a specific situation, that decision was made in violation of the Open Meetings Act.

A party aggrieved by this decision may challenge 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:

Mark R. Chellgren

Associated Press

The State Capitol

Frankfort KY 40601

Keith Moorman

Brown, Todd & Heyburn PLLC

2700 Lexington Financial Center

Lexington KY 40507-1749