November 2011

09-OMD-132

August 18, 2009

In re:  Steven H. Keeney/Kentucky Board of Home Inspectors

Summary:      Kentucky Board of Home Inspectors violated Open Meetings Act by failing to observe requirements for conducting closed session, relying on exception for closed session that was inapplicable, conducting an unannounced meeting, and ignoring open meetings complaint.

Open Meetings Decision

            The question presented in this appeal is whether the Kentucky Board of Home Inspectors, and its Ethics Review Committee, violated the Open Meetings Act as alleged by Steven H. Keeney in his June 8, 2009, complaint which he addressed to Board Chairman D. Michael Green.  For the reasons that follow, we find that Mr. Keeney’s allegations are substantiated, and that the Board, as well as the Committee, violated provisions of the Act in meetings conducted on April 13 and April 14, 2009.

            On February 16, 2009, Mr. Keeney submitted a letter to the Commissioner of the Department of Housing, Buildings and Construction, to which the Board of Home Inspectors is attached, in which he asserted that three of the Board’s members had violated the Board’s Code of Ethics.[1]  That letter was included as an agenda item for the Board’s regular March meeting and resulted in the creation of an Ethics Review Committee comprised of three board members, one of whom, Linda Swearingen, was designated chair.

            The Ethics Review Committee conducted an unannounced meeting on April 13, 2009, one day before the Board’s regular monthly meeting.  The minutes of the regular Board meeting conducted on April 14 reflect that the Board went into “executive session to discuss the ethical concerns that may be the subject of future litigation of either the particular board members or outside parties.”  When the Board returned to open session, a letter from Ms. Swearingen, chair of the Ethics Review Committee, was read into the record.  That letter, a copy of which was appended to Mr. Keeney’s appeal, stated:

            The Ethics Review Committee met on April 13, 2009.  Richard Flora, Mark Schmidt and myself, as well as Staff Attorney Michael Bennett, convened to discuss ethical questions and concerns related to KREIA members J.R. Bone, Michael Green, and Michael Patton.

            Mr. Bone, Mr. Green, and Mr. Patton had each received a letter dated March 19, 2009, containing several questions related to the KBHI Code of Ethics and their membership in KREIA.  The purpose of these questions was to determine if a conflict of interests exists for the three members in question.

            After reviewing the responses provided by Mr. Bone, Mr. Green, and Mr. Patton, the Ethics Review Committee reached the following conclusions[.]

In sum, the Committee determined that “there is no evidence that any member of the [Board] has accepted improper benefits,” and thereafter “[found] no ethical violation.”  This determination was adopted by the full Board in open session.

            Based on this series of events, Mr. Keeney submitted his written open meetings complaint to Board Chairman Green on June 8.  He alleged:

1.         The Board violated KRS 61.815(1)(a) by failing to give notice in the regular open session of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.

2.         The Board violated KRS 61.810(1)(c), as prohibited by KRS 61.815(1)(d), by discussing matters outside the scope of the claimed exemption authorizing “discussions of proposed or pending litigation against or on behalf of the public agency.”[2]

3.         The Board’s Ethics Review Committee violated KRS 61.810(1) by failing to give notice of, and admit the public to, its April 13, 2009, meeting.  Alternatively, the Committee violated KRS 61.815(1)(a) by failing to give proper notice in advance of a closed session.

Mr. Keeney proposed a variety of specific remedies for each alleged violation, including adoption of a resolution acknowledging the violations, dissolution of the Ethics Review Committee, and a declaration that its actions are void.  Having  received no written response to his complaint, he initiated this appeal to the Attorney General on July 30, 2009, alleging that the Board’s failure to respond to his complaint constituted a separate violation of the Act.

            In correspondence directed to this office following commencement of this appeal, Board counsel, Michael Bennett, responded to Mr. Keeney’s allegations.  Mr. Bennett refuted allegations one and two, observing:

At the April 14^th meeting of the KBHI, the Board voted to go into closed session to discuss the findings of the ERC.  At that time, staff counsel stated that the Board was entering into closed session based upon the exception in KRS 61.810(1)(c) which provides an exception to Open Meetings law for, “Discussions of proposed or pending litigation against or on behalf of the public agency.”

            Staff Counsel held a good faith belief that these matters might end in litigation on two fronts:

1)         Mr. Keeney would pursue some legal remedy if his ethics complaint were dismissed; or

2)         An ousted board member might sue to be reinstated.

In the alternative, Mr. Bennett argued that KRS 61.810(1)(f) authorized the closed session inasmuch as that exemption permits closed session “[d]iscussions or hearing which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student . . . .”  In support, he noted that KRS 198B.704(19) requires dismissal of a Board member if an ethics violation is found.  With specific reference to Mr. Kenney’s second allegation, Mr. Bennett denied that matters outside of the ethics complaint were discussed in closed session, noting that “even if staff counsel or the Board misconstrued KRS Chapter 61, there was a valid exception to allow a closed session to be conducted . . . [and a]ny error . . . was harmless.”[3]

            Mr. Bennett conceded that the Ethics Review Committee violated the Open Meetings Act at its unannounced April 13 meeting, but asserted that “there was no deliberate attempt to circumvent the statutory requirements relating to open meetings.”  He explained:

            Staff Counsel believed a meeting of the Ethics Review Committee on April 13^th . . . could be held without notice to the public and held as a closed meeting pursuant to 61.810(c) [sic] . . . .

It was his position that although the Committee should have complied with KRS 61.823, and KRS 61.815 in conducting that meeting, KRS 61.810(1)(f) authorized the closed session.

            Turning to Mr. Keeney’s final allegation, relating to the Board’s failure to properly respond to his complaint, Mr. Bennett averred:

Staff counsel, acting in good faith, believed a response was unnecessary because service was improper, and the presiding officer relied upon counsel.

            KRS 61.846(1) states in pertinent part, “The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850.”  Staff Counsel believed Richard Moloney should have been served as the commissioner of the Department of Housing, Buildings and Construction.  Moloney never received a copy of the complaint in contrast to Mr. Keeney’s assertion that Moloney was copied; furthermore, the statute seemed to be perfectly clear, so staff counsel did not consult the “definitions” section of the statute.

            A closer reading of the definitions indicates “public agency” would include the Kentucky Board of Home Inspectors (KBHI) under KRS 61.805(2)(a), (e) and (g).  Michael Green is the presiding officer, and service of the complaint upon him appears to be proper.  The failure to respond was not intentional.

Again, he characterized any resulting error as “harmless.”  We disagree. 

            We address first Mr. Keeney’s final allegation.  Whether “intentional” or not, the Board’s failure to respond to Mr. Keeney’s June 8 open meetings complaint constituted a violation of KRS 61.846(1).  That statute provides that upon submission of an open meetings complaint to the public agency’s presiding officer:

The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.  . . . .  An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.

Although we are not equipped to resolve the factual dispute relating to the submission of a copy of his complaint to Commissioner Moloney, Mr. Keeney had no duty to submit a copy to him, and this is not a plausible defense.  “To hold otherwise,” the Kentucky Court of Appeals recognized in a recent opinion overturning a mayor’s dismissal from an open records appeal because “she was never served personally with the Open Records request would be tantamount to encouraging our government officers to ‘bury their heads in the sand’ to public matters with which they are charged.”  Baker v. Jones, 199 S.W.3d 749, 751 (Ky. App. 2006).  It is undisputed that the Board made no inquiry and took no action even after its July 14 meeting, when Mr. Keeney expressed the belief, “on the record,” that the Board’s chair, Michael Green, was its “presiding officer” and therefore the appropriate person upon whom to serve his complaint.[4]  As this office noted in 00-OMD-114, the Open Meetings Act “does not recognize a class of violations of lesser gravity than the remaining class of violations, and therefore capable of being dismissed as merely ‘technical,’” or in the present appeal, harmless.

            Nor is there any legal basis for characterizing the Ethics Review Committee’s noncompliance with the requirements of the Open Meetings Act as harmless error.  The Kentucky Board of Home Inspectors is a public agency, and any committee established, created, and controlled by it is, itself, a public agency pursuant to KRS 61.805(2)(g),[5] and is statutorily obligated to comply with KRS 61.823 by giving proper notice of its special meeting,[6] to comply with KRS 61.810(1) by admitting members of the public to the meeting, to comply with KRS 61.815 before conducting a closed session if legitimate grounds existed for doing so,[7] and to comply with KRS 61.835 by recording minutes of the meeting.[8]  See, e.g., Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (Ky. 1987) (holding that the presidential search committee created by action of the Board of Trustees of the University of Kentucky, a public agency created by statute, is itself a public agency); see also, OAG 91-54; 93-OMD-49; 95-OMD-124; 99-OMD-77; and 98-OMD-96.  The Ethics Review Committee played a role in the formation of Board policy, and its April 13 meeting was subject to the requirements of the Open Meetings Act regardless of whether it had the authority to act.  Its failure to comply with these provisions constituted a violation of the Open Meetings Act.

By the same token, the Board violated KRS 61.815(1)(a) in failing to observe the requirements for conducting a closed session at its April 14 meeting.  As a condition for conducting a closed session, KRS 61.815(1)(a) requires that:

Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session[.]

In construing this provision, the Attorney General has often observed:

The express purpose of this, as well as the other provisions of the Open Meetings Act, “is to maximize notice of public meetings and actions [and t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.”  Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 922 (Ky. 1997).  With specific reference to KRS 61.815, the Supreme Court declared that prior to going into closed session, “the public agency must state the specific exception contained in the statute which it relied upon,” and give “specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting.”  Id. at 924 (emphasis added). 

            [T]his office has determined that notification which does not include a statement of the specific exception(s) relied upon to conduct a closed session, a description of the general nature of the business to be discussed in, and the reason(s) for, the closed session is inadequate.  00-OMD-47; 00-OMD-64; 01-OMD-181; 02-OMD-200.  Although we have recognized that “given the disparate nature of the twelve exceptions, there can be no bright line test for determining if specific and complete notification has been given,” KRS 61.815(1)(a) contemplates notification that “include[s] both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in sufficiently specific terms to enable the public to assess the propriety of the agency’s action.”  00-ORD-47, p. 6.

03-OMD-221, p. 4.

            The minutes of the Board’s April 14 meeting reflect:

            Mr. Bennett said pursuant to KRS 61 that this issue could become a subject of litigation against a board member or members on an ethics issue, this portion of the meeting should be in closed session. [Sic.]  Mr. Steven Keeney of Professional Learning Institute4U requested Mr. Bennett for the exact statute he referred.  Mr. Powers moved the Board to go into closed session to discuss the ethical concerns that may be the subject of future litigation of either the particular board members or outside parties.  Mr. Welty seconded the Motion and the Motion carried unanimously.

Clearly, this language does not satisfy the standard established by the Supreme Court in Floyd County v. Ratliff, above.  The requirement that the agency give notice of “the specific provision of KRS 61.810 authorizing the closed session” was added when the Open Meetings Act was amended in 1992, but does not supplant the agency’s duty to give notice in the regular open meeting of the general nature of the business to be discussed in closed session, and the reason for the closed session.  Together, these requirements import a legislative resolve aimed at enhancing the public’s right to monitor public official conduct in a public meeting.  The Board’s failure to cite the specific exception upon which it relied, and the reason for the closed session, constituted a violation of KRS 61.810(1)(c).

            So, too, did the Board’s reliance on KRS 61.810(1)(c) as the statutory basis for the closed session.  That exception authorizes public agencies to conduct closed session “[d]iscussions of proposed or pending litigation against or on behalf of the public agency[.]”  Analyzing this exception in Floyd County Board of Education v. Ratliff, at 924, the Kentucky Supreme Court observed:

[T]he drafters of the legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics.  Obviously, anything that would include the attorney-client relationship would also fall within this exception.  The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply “any time the public agency has its attorney present” or where the possibility of litigation is still remote.  See Jefferson County Board of Education v. The Courier-Journal, 551 S.W.2d 25 (Ky. App. 1977).  As properly noted in Jefferson County Board of Education, supra, the matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of “everything tangential to the topic.”

Numerous open meetings decisions of the Attorney General support this view.  See, e.g., OAG 78-227; OAG 84-240; OAG 91-141; 92-OMD-1728; 95-OMD-57; 97-OMD-96; 99-OMD-146.

            Because the Board was not a party plaintiff or defendant in a lawsuit, had not been threatened with litigation, and the likelihood of litigation was, at best, remote, at the time of its April 14 closed session, the Board improperly invoked KRS 61.810(1)(c).  The record on appeal confirms that the closed session discussion focused on ethical issues relating to three members that arose from Mr. Keeney’s February 16 complaint, and not “matters commonly inherent to litigation, such as preparation, strategy, or tactics.”  Ratliff at 924.  The Board’s reliance on this exception was therefore misplaced.

            On appeal, the Board advanced an alternative argument relative to its April 14 closed session.  The Board maintained that because KRS 198B.704(19) requires dismissal of a board member if an ethics violation is found, it could properly conduct a closed session discussion that might lead to the dismissal of that member pursuant to KRS 61.810(1)(f).  In 01-OMD-18, the Attorney General addressed a similar issue concluding that the Richmond Board of Ethics did not violate the Open Meetings Act when it relied on KRS 61.810(1)(f) as the basis for conducting a “preliminary inquiry” into allegations against the mayor.  A copy of that decision is attached hereto and incorporated by reference, and, in particular, the discussion at pages 5 and 6.

            KRS 198B.704(19) provides:

A member shall be automatically removed from the board [of Home Inspectors] and a vacancy shall be created if a member fails to adhere to a duly adopted code of ethics of the board.  Failure to adhere to such a code shall be determined by official action of the board.

In 05-OMD-086, a copy of which is attached, this office determined that the terms “removal” and “discipline” are synonymous.  At page 11, we reasoned:

            In this context, the relevant definition of “removal” is:  “Dismissal, as from office.”  The American Heritage College Dictionary 1177 (4^th ed. 2002); See Kentucky Judicial Conduct Commission v. Woods, 25 S.W.3d 470, 473 (Ky. 2000) (defining “Removal from office” as “Deprivation of office by act of competent superior officer acting within scope of authority”).  Based on the “common and approved” meaning of the term removal, this office concludes that removal is the functional equivalent of dismissal.

The Board is statutorily vested with the duty to “determine[ ] by official action” if a member has failed to adhere to its Code of Ethics.”  Upon such a determination, the member is “automatically removed.”  Clearly then, the Board’s closed session discussion of the allegations of unethical conduct relating to its members that were leveled by Mr. Keeney might have led to the members’ “removal” or “dismissal.”  Although the Board invoked this exception at the eleventh hour, and this was not the ultimate outcome of the closed session, we find that the Board properly relied on KRS 61.810(1)(f) in conducting its closed session discussion.  Nothing in the record on appeal supports Mr. Keeney’s claim that the Board members exceeded the permissible scope of the exception in their closed session discussion, or that they took final action in the closed session.  We therefore find no merit to this claim.

            A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a).  The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

                                                                        Jack Conway

                                                                        Attorney General

                                                                        Amye L. Bensenhaver

                                                                        Assistant Attorney General

#279

Distributed to:

Steven H. Keeney

Dawn Bellis

Mike Bennett