AG: Stanford City Council violated Open Meetings Act

Published 10:55 am Friday, January 11, 2019

STANFORD — A pair of special-called meetings held by the Stanford City Council in October resulted in three separate violations of the Open Meetings Act, according to a ruling by Kentucky Attorney General Andy Beshear.

The AG ruling, issued Dec. 18, finds the council violated the law three times on Oct. 18, “by going into closed session without first describing the general nature of the business to be discussed; allowing non-members into the closed session without explanation for their presence; and conducting a series of less-than-quorum meetings for the purpose of avoiding the requirements of the Act.”

On Oct. 18, the City Council held two separate meetings. The first meeting began at 6 p.m. and the first item on the agenda was “executive session under KRS 61.810 (1)(c) Pending Litigation.” The Interior Journal argued in the Dec. 3 Open Meetings Complaint that the City Council failed to state the general nature of business to be discussed in closed session.

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The complaint states, “A reporter for The Interior Journal inquired about any and all topics which were to be discussed, to which the City Attorney responded ‘proposed litigation, which would include a threat of litigation.”

City Attorney John Hackley provided a response on Dec. 6 to the Open Meetings appeal filed by the newspaper, and argued the closed executive session was properly noted on the agenda and “concerned a specific threat of litigation, and the City Attorney disclosed information to the City Council directly related to a proposed mode or of addressing the threat, all matters being of the nature of Attorney/Client privileged information.”

The Attorney General decision disagreed with Hackley’s response, stating, “The City Council failed to describe, at all, the nature of the business for which it went into closed session, or explain why the threatened litigation could not be described in open session.”

“A public agency must describe the business to be discussed in closed session with sufficient specificity to enable the public to assess the propriety of its action,” the ruling states.

The newspaper’s complaint also argued that the City Council violated the law by selectively allowing non-Council members into the closed session.

“A quorum of the city’s Planning and Zoning Commission, as well as members of the three-person Code Enforcement Board, and the Code Enforcement Officer, were invited into the secret session and remained until the council returned to an open meeting,” the complaint states.

The Attorney General ruling stated the office has long held that ‘selective admission’ to closed sessions of public agencies is impermissible but nevertheless, has, on occasion, recognized the presence of a non-member is necessary at times.

“If the presence of non-Council members (Planning and Zoning Commission members, Code Enforcement Board members and the Code Enforcement Officer) was required in the closed session, the City Council cannot be said to have violated the Open Meetings Act by permitting those persons to remain, but the City Council must provide an explanation for the necessity of their presence and they must leave after their presence is no longer required,” the ruling states.

Since the City Council failed to respond to The Interior Journal’s initial complaint, and the response to the Open Meetings appeal did not address the reason for selectively admitting people into the closed session, the Attorney General stated, “Thus, we are left with no other conclusion but that the City Council violated the Act by selectively admitting certain persons, other than the City Council members and city attorney, into the closed session and allowed them to remain beyond the time in which their presence was necessary to the purpose of the closed session.”

The newspaper’s complaint argued that a third violation occurred during the second meeting on Oct. 18, which started once the executive session was over. The item on the agenda in question was the “appointment of new council member to fill the unexpired term of John sallee.”

The complaint states, “Only one council member spoke on the subject and state, according to a report from the Interior Journal newspaper: ‘We decided, well, just talking invididually, not in any session together, that it’s best to just look at the last four years and see who was on the (2014) ballot,’ said City Council member Naren James.”

The newspaper argued that this was an admission by the City Council member that the council had already discussed the matter and made a decision on the appointment of the new member prior to the public meeting.

“The appointee had already been contacted about the decision and was present at the Oct. 18 meeting, during which he was formally sworn in as the late council member’s replacement,” the complaint states.

The City Council did not respond to the initial complaint and failed to offer facts or arguments on appeal to refute the newspaper’s complaint, according to the Attorney General’s ruling.

“That being the case, we have no alternative but to conclude that the City Council conducted a series of less-than-quorum meetings; made a decision regarding the appointment of a new member in those meetings; and that those meeting were made for the purpose of avoiding the requirements of the Open Meetings Act. These Actions violated KRS 61.810 (2),” the ruling states.

Hackley’s Dec. 6 response appears to admit to the less-than-quorum meetings violation but the City Council has yet to fulfill the remedies requested by the newspaper. The Interior Journal requested that the City Council remedy the breaches of the Open Meetings Act by discussing at a future meeting, in an open and public session, those matters that were discussed at the improperly called closed session, and also publicly commit to a future course of conduct consistent with all requirements of the Open Meetings Act.

In the response, Hackley states, “The language quoted by Ms. Whitehouse causes concern, and the subject of discussion of City Council members outside of the confines of a public meeting such that a decision or consensus is released will be addressed in a public session.

City Council discusses AG decision

Hackley could not be at the Jan. 4 City Council meeting but the Attorney General’s ruling was briefly discussed by City Council members who said they had not been brought up to speed on the case. Since the ruling was in December, it was related to the previous City Council. Some of those members were, however, reelected to their seats.

“I’ll just bring it up now, that closed meeting that we had…was an illegal meeting,” said City Council member Peggy Hester last Thursday.

Hester was the lone City Council member who opposed entering into executive session on Oct. 18. and questioned the legality of the discussion that was expected to take place in secret session. Hester voted against the motion to enter into executive session.

“I’m not sure we have legal right to go in under a threat,” Hester said at the time.

Ernst, the newly elected Mayor of Stanford, said he wasn’t made aware of the complaint and subsequent Attorney General ruling until the first week of January and said it could possibly fall under “pending litigation.” Ernst also served on the previous City Council.

Council members Ronnie Deatherage and Hester argued that there was no “pending litigation.”

City Clerk Jone Allen stated the city attorney has filed an appeal. The Interior Journal has not received any notification that an appeal has been filed. If the City of Stanford does decide to appeal the Attorney General’s ruling, it would have to do so in the appropriate Circuit Court.

“We can say that the Attorney General came down with a decision that there was no reason for that (executive session). Now, if he’s (Hackley) filed an appeal, I understand we have to be quiet but we can say up to that point, the IJ (Interior Journal) filed an (Open Meetings Complaint),” Hester said. “That came back to the City Attorney and Mayor (Eddie) Carter and nothing was ever said to council. We were not made aware of that.”

Council member Naren James said city governments can go into executive session under certain exemptions in the law.
“That’s exactly what the The Attorney General came down…his decision was it was an illegal meeting,” Hester said. “Now, they can oppose that, they can do whatever they want to do, but that is from the (Attorney General’s) office, that that was an illegal meeting on all three counts.”

Hester requested that anything of that magnitude be brought to the City Council’s attention in the future.

“We shouldn’t have to get it second-hand or third-hand. We should know up front, this is what’s happened, in regards to that meeting. We didn’t get that. I don’t know that we would’ve gotten it tonight, but we have a right to know those things,” Hester said.

“I know the City Attorney is looking into all three issues,” Ernst said. “It’s been the holiday and when it (the ruling) came down he just couldn’t get anything. It was December.”

James said it sounds like, unfortunately, things fell through the cracks with the changing of the administration.

“I think the Kentucky League of Cities would have an interest because you know, just being a business owner, I can tell you some things, just by discussing them, can potentially be a risk,” James said. “We just need to talk in very general terms and if we do that, it’s probably not an issue, but if we get too specific it can obviously become an issue for the city.”

Hester said it all comes down to the fact that the executive session was illegal.

“I opposed it then. I oppose it now,” she said. “That was not a situation that should’ve been hidden from the public. I was told to not come out of that meeting and say one word about it. I don’t appreciate being throttled because I have a different opinion than our City Attorney.”

Council members discussed possibly holding a training session on Open Records and Open Meetings laws.

“Well the IJ (Interior Journal) has made sure we get lots of training,” James said laughing. “I’ve been trained multiple times by you guys…In a couple weeks, when we come back to the February meeting I think we’ll be much more informed. We have a Kentucky Official Academy meeting, which is very helpful…”

The City Council agreed to table the issue and address it during the regular February meeting when the City Attorney is present.