In the fourth and final installment of our Sunshine Week Open Records and Open Meetings Q and A, we focus on the process by which a citizen open government advocate can challenge public agency violations of the Open Meetings Act. In the third installment we identified the citizens’ rights and the agency’s duties under the Act.

1. What are the most common violations relating to these rights and duties?

• A secret meeting of a quorum of a public agency’s members at which public business is discussed or action is taken;

• A series of less than quorum meetings to discuss public business or take action (whether in person, by telephone, by email, on social media, etc.) if the agency members attending one or more meetings, added up, constitute a quorum and the less than quorum meetings are held to avoid open meetings requirements;

• A requirement that a person who wishes to attend sign in or otherwise identify himself;

• A meeting room that does not provide adequate space, seating or acoustics;

• A meeting conducted at an inconvenient time or place;

• An agency’s failure to adopt and make available to the public a regular meeting schedule;

• An agency’s failure to give proper notice of a special meeting;

• A special meeting agenda that contains general agenda topics (“old business,” “new business,” “open to floor,” etc.);

• A discussion of non-agenda topics at a special meeting;

• An agency’s failure to observe the requirements for going into closed session;

• A closed session for which no legal basis exists or during which additional topics are discussed;

• An agency’s failure to return to open session to take final action;

• A secret ballot on action taken;

• An agency’s failure to record minutes that reflect, at a minimum, each vote and action taken and to make the minutes available to the public at its next meeting;

• An agency’s attempt to restrict a citizen’s (or the media’s) right to record a meeting; and

• Any violation identified above that is committed by a committee established by a public agency.

Note:  OMA does not give citizens the right to speak at a public meetings. An agency that does not permit public comment, or places time -- or other – restrictions, on public comment, cannot be said to violate OMA.

Note: Kentucky’s courts have recognized that there is no time or place convenient to all citizens. The courts have stated that “the open meetings statutes are designed to prevent government bodies from conducting business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require such agencies to seek out the most convenient time or location.”

1. What should I do if I see a violation and want to challenge it?

If you believe that a public agency has violated its duties, or your rights, under OMA, you can challenge the agency’s violation. You must first submit a written complaint to the agency’s “presiding officer.” For example, the county judge (fiscal court), the mayor (city council), the chairman (board of education), etc., presides over the agency meeting, and your written complaint should be directed to him.

In your complaint, you must describe the agency conduct which you believe constitutes a violation of OMA. For example, “I believe that the fiscal court violated the Open Meetings Act at its March 16, 2018, meeting when it went into closed session without a legal basis to discuss general personnel matters.”

You must also propose a remedy for the violation. For example, “As a means of remedying this violation, I propose that the fiscal court disclose all records or recordings of the illegal closed session and agree to limit all future closed sessions to statutorily authorized topics under KRS 61.810(1)(a) through (m).”Be sure to keep a copy of your written complaint. You will need it if your request is denied – or ignored – and you decide to appeal.

OMA does not specify how to send your open meetings complaint to the presiding officer. U.S. Mail, fax, hand-delivery, or even email should be acceptable

.OMA establishes a three working day response time for a public agency. On the third working day, the agency must issue a written response indicating whether it acknowledges the violation and will make efforts to remedy it. If the agency believes it did not violate OMA, its written response must identify the statute that supports its denial of your complaint and explain how the statute applies.

The three working day deadline begins to run the day after your complaint reaches the agency. Because delays often occur in the mail, you should add at least two days on either end of the three working days. You can avoid this problem by hand delivering, faxing, or emailing your open meetings complaint.

1. What are the most commonly cited statutes authorizing a closed session?

A citizen may question whether the public agency has a right to go into closed session. OMA contains 13 exceptions that permit agencies to conduct closed session discussions. Like the exceptions to ORA, the exceptions to OMA recognize that in certain cases there is a legitimate need for governmental confidentiality. The most often cited exceptions include:

The “litigation” exception permitting closed session discussions about proposed or pending litigation that has been filed against or on behalf of the public agency. The exception applies if a  lawsuit has already been filed or is only threatened, but the threat of litigation must be “substantial.” In other words, the litigation exception does not apply every “time the agency has its attorney present.” It applies to “discussions of strategy, tactics, and possible settlement” of a case, and is designed to protect the public agency’s litigation position from the opposing party.

The “personnel” exception permitting closed session discussions that might lead to the “appointment, discipline or dismissal” of an employee, member, or student, “Member” is defined as “a member of the governing body of the public agency.” This exception exists to protect reputational interest but is “severely restricted.” Appointment, discipline or dismissal are “the only personnel matters a public agency may discuss in closed session.   Discussions of any other matters are expressly precluded.” OMA specifically prohibits  “discussion of general personnel matters in secret.”

The exception is often cited to permit discussions about qualifications of competing candidates for hiring (appointment) or discussions about alleged misconduct by an employee (discipline or dismissal). It cannot be used to conduct closed session discussions on subjects like an agency wide pay raise, a public employee’s or official’s evaluation, or an employee’s or official’s resignation.

The exception for discussions relating to the purchase or sale of real property if publicity is likely to affect the property’s value. This exception enables an agency to negotiate for the sale or purchase of realty without disclosing how much it is willing to pay to purchase property or the lowest price it will accept to sell property.

The exception for discussions relating to meetings which state or federal law require to be held in secret. Very few laws actually require secret meetings and this exception is properly relied on in very rare cases.

There are ten other exceptions to OMA, including an “economic development” exception that permits closed session discussions with a business about the business’s previously undisclosed interest in locating or expanding its business, if public discussion would jeopardize the business’s plans, and discussions relating to records that implicate homeland security. but the litigation and personnel exceptions are, by far, the most frequently cited.

Agency responses to open meetings complaints alleging failure to give proper notice of a special meeting, inadequate meeting room conditions, a meeting conducted at an inconvenient time or place, discussion of non-agenda topics at a special meeting, or any other alleged violation, will vary depending on the circumstances, but any denial of an open meetings complaint can be challenged by appeal to the Kentucky Attorney General.

1. What are my options if the agency denies my complaint?

You can appeal the agency’s denial of your open meetings complaint to the Office of the Attorney General, 700 Capital Avenue, Frankfort, KY 40601, by mailing or emailing a copy of your written complaint and a copy of the agency’s denial. If the agency did not respond to your complaint, you should explain this to the OAG in a cover letter.

The OAG has adopted regulations that may be helpful to you in filing your appeal.

An open meetings appeal to the OAG costs nothing, can be handled without an attorney, and takes less time than an appeal in the courts. The OAG’s decision in an open meetings appeal is called an Open Meetings Decision (“OMD”) and is numbered by year and order of release (“18-OMD-002” is the designation for the second decision issued in 2018). It has the force and effect of law and binds the complainant and the agency if not appealed to circuit court within 30 days. Either the agency or you can appeal an unfavorable decision to the circuit court.

You can bypass the OAG and file an appeal in circuit court if the denial raises complex legal issues that requires the greater time and resources of a court or you disagree with the OAG’s position expressed in past decisions of the office.

Unlike ORA, there is a  “statute of limitation” for filing an open meetings appeal to the OAG. OMA requires you to file an appeal with the OAG within 60 days “of receipt . . . of the agency’s written denial.” If the agency ignores your request, you must file your appeal within 60 days of the day you submitted your complaint. If you file an appeal on day 61, the OAG will reject it.

A “letter of appeal” is not legally required – just a copy of your written complaint and the agency’s written denial – but you may include a letter in which you provide relevant factual background and legal arguments supporting your position.

Your appeal will be assigned to an assistant attorney general and notification of your appeal will be mailed to the agency and to you. The assistant AG will review the facts and law – and perhaps seek additional information from the agency – and issue an OMD within ten working days. This deadline cannot be extended by the OAG.

The OAG is only authorized to decide whether the agency’s actions violated the provisions of OMA. He cannot “enforce” OMA or impose penalties for violations of OMA.

What are some tips for dealing with the OAG?

If you submit more than one appeal at a time, keep track of the OAG log numbers to avoid confusion.

Provide the OAG with your contact information. Complaints and appeals submitted by fax or email often omit this information.

Do not call the OAG’s staff to add new arguments or information. Quickly put the information in writing and fax or email it to the assistant AG assigned to the appeal. His or her name appears on the notification issued by the OAG upon receipt of your appeal.

The agency has three days to respond to your appeal and must provide you with a copy of its response and any additional correspondence with the assistant AG. You should extend the same courtesy to the agency if you correspond with the OAG after you file your appeal.

If you do not receive written notification that the OAG received your appeal, call his office at (502)696-5300 and ask to speak to the open meetings/records staff.

You are statutorily entitled to receive an OMD within ten days, as described above, and the OAG is statutorily required to issue the OMD within this timeframe. Call the open meeting/records staff if there is a delay.

If you lose your appeal, or are dissatisfied with the OMD, you may appeal it to the circuit court within 30 days of the day it was issued. You will be the Plaintiff (Petitioner or Appellant) and the agency will be the Defendant (Respondent or Appellee). If the agency loses the appeal, or is dissatisfied with the OMD, it may appeal. In this case, the legal designations will be reversed. The OAG must be notified of the appeal but cannot be named as a party.

What are some tips for dealing with public agencies?

An agency has 30 days to decide whether to comply with the OMD or appeal to circuit court. Agencies can, and frequently do, take the full 30 days to decide.

You can call or write the agency as the 30 days proceed to ask what it intends to do, but the agency is not legally required to tell you.

Be nice. Experience teaches that flaunting your victory is not conducive to a happy resolution of the open meetings dispute.

If the agency appeals to circuit court and loses there, it has one more appeal “of right” to the Court of Appeals. If the agency loses at the Court of Appeals, it may petition the Supreme Court for “discretionary review.”

This concludes our Sunshine Week Open Records/Open Meetings Q and A. It is important to remember that OMA and ORA are “citizens’ rights bills.” “The real power of both the open meetings and the open records law…is that it’s not just for journalists.” Rather, “it’s for all citizens to use… Everybody can use it because everybody owns their government.” With the tools we’ve attempted to provide, you should be better equipped to “arm [yourself] with the power which knowledge gives,” in the spirit of the philosophical Founding Father of Sunshine Week, President James Madison.