95-OMD-057

TO BE PUBLISHED

95-OMD-57

April 5, 1995

IN RE: Lexington Herald-Leader Company/Lexington-Fayette Urban County Government

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by James L. Thomerson, Esq., on behalf of his clients, the Lexington Herald Leader and Thomas Tolliver, staff reporter for the Herald-Leader, from the written response received from Theresa L. Holmes, Esq., Corporate Counsel for the Lexington-Fayette Urban County Government. The Lexington Herald-Leader Company maintains that the urban county government violated the Open Meetings Act when particular subjects were discussed during a closed session of a council meeting.

In a letter to the mayor, dated March 1, 1995, Mr. Thomerson objected to a closed portion of the council meeting of February 23, 1995, to address the matter of the dispute between the city and the state concerning what is known as the "Ben Snyder Block." To justify going into a closed session the council cited the exceptions to open meetings set forth in KRS 61.810(1)(b) and (c). A reporter for the newspaper objected at the time to closing the meeting for those reasons and Mr. Thomerson's letter to the mayor maintained that the exceptions cited by the city were not applicable to the subject matter under discussion.

Ms. Holmes, on behalf of the urban county government, replied to Mr. Thomerson in a letter dated March 7, 1995, and advised that the closed session of the council meeting was proper pursuant to KRS 61.810(1)(b) and (c).

Mr. Thomerson, in his letter of appeal to the Attorney General, received March 16, 1995, again maintained that the closed session of the council meeting was improper and not supported by the exceptions to public meetings set forth in KRS 61.810(1)(b) and (c).

KRS 61.800, enacted in 1992, states in part that the General Assembly finds and declares that the basic policy of the Open Meetings Act is that the formation of public policy is public business and it shall not be conducted in secret. The exceptions provided for by KRS 61.810 and elsewhere shall be strictly construed.

Among the exceptions to open and public meetings are those set forth in KRS 61.810(1)(b) and (c) involving these situations:

(b) 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;

It apparently was common knowledge that the purpose of the closed session on February 23, 1995, was to discuss the city's obligations and liabilities relative to property known as the "Ben Snyder Block" and a Memorandum of Understanding executed between the urban county government and the Commonwealth of Kentucky involving that property. This has not been denied by the urban county government. Numerical paragraph twelve of the Memorandum of Understanding provided in part that if the urban county government had not awarded a contract for construction of facilities on the project site by December 31, 1992, it had to purchase the site from the Commonwealth for a sum equal to the Commonwealth's total cost of acquisition of the property plus interest.

If a public agency is to utilize the exception set forth in KRS 61.810(1)(b), it must be involved in the sale or acquisition of real estate and any publicity relative to the matter would likely affect the value of the property to be sold or acquired, thus justifying a closed proceeding. See 94-OMD-22.

It would not appear that the sale or acquisition of property is involved as the Memorandum of Understanding required the urban county government to pay back the Commonwealth for land previously acquired by the Commonwealth for the use of the urban county government by a particular date. Even if the sale or acquisition of property was involved publicity would not be a factor as the Memorandum of Understanding which involved only the urban county government and the Commonwealth specified the price to be paid by the urban county government in the event of its default. A public discussion of matters pertaining to the "Ben Snyder Block" and the urban county government's obligations under the Memorandum of Understanding would have no effect on prices of the property in question and the urban county government was, therefore, precluded from asserting KRS 61.810(1)(b) as justification for closing the meeting.

In 93-OMD-119, copy enclosed, this office said in part relative to KRS 61.810(1)(c) and the litigation exception to open and public meetings:

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.

KRS 61.846(1), dealing in part with the required response of a public agency to a complaint, provides that the public agency must include a statement of the specific statute or statutes supporting the public agency's denial of the complaint and a brief explanation of how the statute or statutes apply. While the urban county government cited KRS 61.810(1)(c), the litigation exception, there was no explanation of how that specific exception applied to the particular matter of the council's discussion of the property known as the "Ben Snyder Block." There was no indication that at the time of the council meeting on February 23, 1995, the urban county government was a party to litigation concerning the property involved, the urban county government had been threatened by the Commonwealth with a lawsuit, or that litigation involving the urban county government and the specific property involved was more than a remote possibility. It appears that the urban county government was discussing its obligations and possible responses relative to its alleged failure to abide by the terms of the Memorandum of Understanding entered into by the Commonwealth and the urban county government which precluded it from relying upon the litigation exception, KRS 61.810(1)(c), to close an otherwise public meeting.

KRS 61.846(2) requires that the Attorney General review the complaint and denial and issue a written decision stating whether the public agency violated the provisions of the Open Meetings Act. It is our decision that the urban county government violated the Open Meetings Act on February 23, 1995, as the evidence available does not justify its reliance upon KRS 61.810(1)(b) and (c) to go into closed session at that time on matters pertaining to the property known as the "Ben Snyder Block" and the "Memorandum of Understanding" entered into by the urban county government and the Commonwealth. If minutes were kept relative to the closed session, which we have decided was improper, a copy of those minutes should be made available for public inspection pursuant to KRS 61.835.

The public agency, the Lexington-Fayette Urban County Government, 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 proceeding under the Open Meetings Act.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

TRE:sjj

Enclosure

Copies of this decision

have been mailed to:

James L. Thomerson, Esq.

Stoll, Keenon & Park, LLP

201 East Main Street

Suite 1000

Lexington, KY 40507-1380

Theresa L. Holmes, Esq.

Corporate Counsel

Department of Law

Lexington-Fayette Urban County Government

200 East Main Street

Lexington, KY 40507