TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

 

94-OMD-110

 

September 21, 1994

 

 

 

 

 

 

IN RE: Dick Moore/Owensboro Municipal Utilities

 

OPEN MEETINGS DECISION

 

This matter comes to the Attorney General as an appeal by Dick Moore in regard to actions taken by Owensboro Municipal Utilities, hereafter referred to as OMU.

 

In a letter to Mr. William Cavin of OMU, dated June 25, 1994, Mr. Moore maintained that OMU had violated the Open Meetings Law on several occasions during the course of its meeting on June 23, 1994. Mr. Moore said that OMU did not keep minutes of a closed portion of the meeting. He also stated that notice was not given in the open session of the meeting that the agency was going to talk about "coal supply [in the closed session] and then come back into open session and take action to purchase coal."

 

On behalf of Mr. Cavin, Patrick D. Pace, Esq., legal counsel for OMU, advised Mr. Moore in a letter dated June 30, 1994, that a public agency is not required to keep minutes of a closed session and, if such minutes are kept, they need not be made available for public inspection. Mr. Pace also said that Mr. Moore has misconstrued the nature of the business discussed in the closed session by OMU. The vote to go into the closed session concerned, Mr. Pace stated, pending and threatened litigation involving OMU and its coal suppliers. After discussing the pending and threatened litigation OMU came back into open session to consider acceptance of proposals for emergency coal supplies.

 

In a letter to Mr. Cavin, dated June 30, 1994, Mr. Moore complained that OMU cancelled a contract in a closed session of a meeting held on June 23, 1994.

 

Mr. Pace replied to Mr. Moore in a letter dated July 6, 1994 and advised in part as follows:

 

At the OMU Commission meeting of June 23, 1994, the Commission met in closed session to discuss pending litigation and threatened litigation. This included litigation involving Green Coal Company, Inc., and threatened litigation by Green, including the possibility [of] a bankruptcy proceeding and an adversary proceeding therein. Disclosure of the intention of the Commission to cancel Green's contract prior to delivery of the written notice required under the contract would have created the possibility that a Bankruptcy Petition by Green might be filed prior to delivery of the notice of cancellation thereby effecting an automatic stay. Since an automatic stay would preclude cancellation by OMU, action on such in open session was not feasible.

 

In a letter to the Attorney General, dated July 4, 1994, which apparently constitutes Mr. Moore's appeal under the Open Meetings Act, he refers to OMU's coal suppliers, purchases of coal, the Model Procurement Code and an emergency purchasing situation. He also mentioned that before going into the closed session there was no mention of coal, coal supplies, or bids for coal.

 

Mr. Pace, in a letter to the Attorney General's Office, dated July 12, 1994, responded to Mr. Moore's letter of appeal or complaint. He maintains that Mr. Moore has confused procedures under the Model Procurement Code with procedures under the Open Meetings Act. Mr. Pace's letter states in part as follows:

 

At OMU's properly noticed meeting of June 23, 1994, the OMU Commission considered the agenda item of pending or threatened litigation. After motion and unanimous vote, the Commission conducted a

closed session discussing pending and proposed litigation with its coal suppliers. During the closed session the OMU Commission authorized its counsel to send a letter cancelling its contract with Green Coal Company, Inc.

 

After the closed session, the Commission reconvened in open session. Mr. Moore was present because it had been announced prior to the closed session that the Commission might reconvene to take action after the closed session.

 

When the Commission reconvened the Commission voted that an emergency existed which required that it act on bids it received for coal. This was not a "circumvention" of the Model Procurement Code, it was a finding that notice of a special meeting to consider bids received for coal, if necessary, was not practical given the need to arrange for short term coal supply as soon as possible.

 

Since this is an appeal under the Open Meetings Act the function of this office and the scope of this decision is governed by and limited to the mandates set forth in KRS 61.846. Subsection (2) of that statute provides in part that when an appeal is filed with this office under the Open Meetings Act our duty is to "review the complaint and denial" and issue "a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850."

 

The two complaints and denials involved here seem to concern three primary issues. One pertains to the acceptance of proposals for the purchase of emergency coal supplies and the applicability of the Model Procurement Code. Another is the keeping of the minutes of closed sessions of meetings. The final issue relates to a closed session of a public meeting to

discuss pending and threatened litigation and the making of a decision to cancel a coal contract during that closed session.

 

Whether the acceptance of proposals for the purchase of emergency coal supplies in some way violated provisions of the Model Procurement Code is not a question that can be resolved in a proceeding under the Open Meetings Act. This decision, therefore, cannot and will not deal with that issue.

 

KRS 61.835, dealing with the minutes of a meeting, states as follows:

 

The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.

 

In OAG 87-16, copy enclosed, at page five, this office dealt with the keeping of and accessibility to the minutes of a closed session of a meeting and concluded as follows:

 

It is, therefore, the opinion of the Attorney General that minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session.

 

This office, in OAG 81-387, copy enclosed, said that the proceedings of the closed session should not be entered in the minutes except to show that the closed session was held and if a formal action was taken in the closed session. That opinion also stated that minutes of a closed session need not

show information which would defeat the purpose of holding a closed session on an authorized subject matter.

 

Thus, a public agency would not be violating the Open Meetings Act if it failed to keep minutes concerning a properly conducted and legally authorized closed session to the extent that doing so would defeat the purpose of conducting the closed session and no final action was taken at that closed session.

 

In regard to the last issue, 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." In 93-OMD-119, copy enclosed, this office referred to an earlier opinion on the subject and said that when a public agency is a party, either plaintiff or defendant in litigation, it has the right to keep its litigation strategy confidential when necessary. The litigation exception, like other exceptions to the basic policy of open and public meetings, must be narrowly construed. Thus, if the public agency is a party to litigation, or when the chance of litigation involving that agency is more than a remote possibility, the agency may invoke the exception set forth in KRS 61.810(1)(c).

 

In this situation the public agency invoked the litigation exception to close a meeting to discuss a matter which did not involve litigation by or against the public agency but which might cause a private corporation to file a bankruptcy petition in response to a decision taken by the agency on a contractual matter. This is not a proper and authorized use of the litigation exception to open and public meetings. If an exception needs a broader application, the solution is action by the General Assembly rather than a decision by this office.

 

The procedures and requirements pertaining to conducting a closed session of a public meeting provide in KRS 61.815(1)(c) that no final action may be taken at a closed session. A final decision was made by OMU during the closed session to terminate a contract. Notice of that decision was

communicated to the coal company involved with OMU in the contract. If a final decision was not involved, OMU would not have contacted the coal company.

 

The OMU officials violated the Open Meetings Act as they improperly invoked the litigation exception to close a meeting to discuss cancellation of a contract. The fact that the company whose contract was to be terminated might file a bankruptcy petition in response to the contract cancellation does not justify the invoking of KRS 61.810(1)(c). In addition, OMU violated KRS 61.815(1)(c) when it took final action on a matter during a closed session of a public meeting.

 

Either the appealing party or the public agency or both of them 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 shall 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.

 

CHRIS GORMAN

ATTORNEY GENERAL

 

 

 

THOMAS R. EMERSON

ASSISTANT ATTORNEY GENERAL

 

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Enclosure

 

Copies of this decision

have been mailed to:

 

Dick Moore

2116 Griffith Place West

Owensboro, Kentucky 42301

 

Patrick D. Pace, Esq.

332 Frederica Street

Owensboro, Kentucky 42301