KLC Files Amicus Curiae Brief in Important KY Supreme Court Case on Open Meetings
KLC recently filed an amicus curiae (“friend of the court”) brief in a case before the Kentucky Supreme Court which will examine what a city is allowed to do during a closed session to discuss future acquisition of real property.
In Board of Commissioners of the City of Danville v. Advocate Communications d/b/a the Advocate-Messenger, 2016 WL 1739310, the Kentucky Court of Appeals held that the city had violated the Open Meetings Act by reaching a consensus in closed session regarding bidding on a property for sale at an upcoming public auction and supporting the use of a bidding agent. The Court held the deliberations consisted of “final action” under the Open Meetings Act that should have been voted upon in open session.
The exception utilized by the city to go into closed session, KRS 61.810(1)(b), allows “deliberations on the future acquisition… of real property” when public discussion would “be likely to affect the value” of the property. One of the statutory limitations on this exception is that no “final action” can be taken in closed session. KRS 61.815.
In its brief, KLC first pointed out that the Court of Appeals had confused final action, which is prohibited in closed session, with other types of action, some of which are permitted. KLC urged the Supreme Court to recognize that an analysis of whether action taken in closed session is legal depends on the nature of the public agency involved. Cities operate differently from other public agencies, and even differently from each other depending on their form of government.
In this case, the city operates under the city manager plan, and the laws governing the plan place significant executive and administrative authority in the city manager, including budget administration. The city had already appropriated the funds to purchase the property in the budget ordinance. KLC argued that the board of commissioners could voice its support for the bidding strategy to be used without coming into open session to take formal action, because the city manager was authorized through his statutory powers and the budget ordinance to take action whether or not the closed session occurred. If the city had wanted to reverse course on the purchase, it could have taken final action in open session by amending the budget ordinance to reflect a different purchase price, or otherwise directing the city manager to act in a manner different from that authorized. Since they were merely in agreement with the bidding strategy, and since the strategy fit within the city manager’s authority, there was no need to take final action.
KLC participated in this case through its Legal Advocacy Program, which represents the collective legal interests of KLC’s member cities in the courts throughout the Commonwealth. In the past few years, KLC has participated or assisted in many important victories for cities regarding 911 fees, annexation, legislative prayer, open records exemptions, and many other issues.
We will continue to provide updates on this case as it progresses through the Supreme Court.
To read KLC’s amicus brief, go here. http://www.klc.org/UserFiles/files/DanvilleOpenRecordsBrief.pdf?
For more information on the Program or this case, contact Laura Ross, Managing Legal Services Counsel, at 800-876-4552.