Mockingbird Valley cannot conduct its city meetings in the mayor's home

Mockingbird Valley violated the Open Meetings Act when city officials held public meetings at the mayor’s home and in her driveway.

On Aug. 25, 2016, Attorney General Andy Beshear issued an opinion, In re: R. Keith Cullinan/City of Mockingbird Valley, 16-OMD-178.

Cullinan sent a letter to the mayor and city council on July 20, stating he believed that meetings held at the mayor’s home and in her driveway violated the Open Meetings Act, suggesting other possible sites to meet the act’s requirement.

The Jefferson County city responded the city commission would be asked to consider his request at the next meeting. Cullinan appealed to the Attorney General's Office on July 29, stating the response did not meet the requirements of the act and it did not address a remedy for the violations.

In a response, the city acknowledged having meetings at the mayor’s house and in chairs around the front porch of her home.

KRS 61.820(1) requires that all public agency meetings be held at places which are convenient to the public, with various requirements set forth for consideration of the place chosen.

Beshear cited 13-OMD-186, which held that a city violated the Act when meetings were at the home of the mayor. He found that the mayor’s home is not convenient to the public, as required by statute, and that the city violated the act.

The city argued that because there were no other locations within the city’s boundaries, it was appropriate to use a personal residence, citing a previous attorney general opinion that held meetings much be within their jurisdiction.

The Attorney General's Office responded that the cited opinion was subsequently overruled by the Kenton Circuit Court, that meetings could take place outside jurisdiction depending on the necessity of the situation.

Beshear therefore rejected that argument from the city, stating that it may move meetings outside of the jurisdiction to a place near that would be convenient to the public.

Louisville violated Open Records Act denying records used in basketball ban decision

The University of Louisville violated the Open Records Act when it failed to provide records related to its decision to ban the men’s basketball team from post-season play.

On Sept. 1, Attorney General Andy Beshear issued an opinion, In re: Peter Hasselbacher, M.D./University of Louisville, 16-ORD-197, which has the force of law unless appealed to circuit court. Unless it sues, Louisville must turn over records university President James Ramsey used when he imposed the ban and seek records related to the Ramsey's action that are in the possession of other administrators

Dr. Hasselbacher requested any documents that Ramsey reviewed when banning the men's basketball team participation in post-season tournaments. Hasselbacher also requested records used by other administrators to endorse that decision by Ramsey, who has since resigned.

The university is under an NCAA investigation after reports from a self-described madame that she had provided escorts and dancers for basketball players and recruits for several years. Rick Pitino's team sat out the Atlantic Coast Conference and NCAA tournament.  The Cardinals finished the 2015-16 season fourth in the ACC with a 12-6 record and 23-8 overall.
 
The university denied Hasselbacher’s request, declaring records did not exist in a one-line response. Hasselbacher appealed to the Attorney General Office, challenging the university’s compliance with both the Open Records and Open Meetings Act.

He argued that the decision could not have been made without records.

On March 11, Beshear’s office requested additional documents to help substantiate the university's claim there would no records, including the process of searching for the requested records in Ramsey’s custody.

Beshear asked, per 95-ORD-96, that the university document its efforts.

In its response, the university said that Ramsey confirmed he had no documents in hand when he decided to impose the ban. It also stated that Chuck Smrt, an NCAA investigator hired by the university, did not provide Ramsey with any documents.

Louisville argued that the request from Hasselbacher was limited to documents in Ramsey’s possession on the date of the decision. Further the university argued that records not in the possession of Ramsey or Smrt were not covered by the request.

General Beshear stated that the request was clear in that it covered records used by Ramsey in making his decision. He also found that it dealt with records used by other parties like administrators and program directors of the athletics department, endorsing or supporting Ramsey’s ban.

The Attorney General's opinion went on to say that the phrase “such as” did not limit the request to just those individuals. The final sentence of Hasselbacher’s request was for records used to form the basis of the decision to ban the men’s basketball team.

Louisville acknowledged that records related to the allegations around the men’s basketball team did exist, and that the NCAA investigator, Smrt, has possession of such records. Because Smrt was hired by the university to investigate, he was an agent of the university. Louisville also stated that Smrt was present when Ramsey decided on the ban.

The records in Smrt’s possession, created and maintained for the investigation, were used, in some part, to form the basis for the ban, Beshear found, and therefore are public records. Beshear ruled the university cannot avoid the Open Records Act by keeping all records in possession of the investigator.

The Attorney General's Office had requested Louisville send the records to Beshear's office for a private and confidential viewing, but the university refused.

Thus Louisville violated the Open Records Act by not providing the records in Smrt’s possession that were non-exempt to Hasselbacher after his initial request. Beshear pointed out that the university did not demonstrate it had asked other school officials about records in their custody that fell within the request.

Beshear said the university should conduct a better search to locate records within the boundaries of Hasselbacher’s request, and until then, Louisville will not discharge its duty under the Open Records Act.

As with every opinion from the Attorney General, either party may appeal by suing in circuit court.

Agencies must be specific when stating why they're entering executive session

Public bodies intending to meet behind closed doors must clearly specify what will be discussed tin executive session and cite the exact Open Meeting exception that permits the topic to be covered outside the hearing of the public.
 

Attorney General Andy Beshear issued an opinion on June 27, 2016, in In re: The Advocate-Messenger/Boyle County Fiscal Court, 16-OMD-129, which dealt with an Open Meetings and an Open Records inquiry. 

Pamela Wright, a staff writer for The Advocate-Messenger, submitted an Open Records request to the Boyle County Fiscal Court on April 1, 2016, inquiring about the topic of discussion during a March 3, 2016, meeting. Wright stated that the court had not announced the general nature of the business to be discussed during an executive session. She also said that no reason was properly given as to why the matter was being discussed outside the hearing of the public and the media.

Wright appealed to the attorney general in a letter received by the office on May 13  after receiving no response from the fiscal court. 

The court responded through the county attorney, denying any violations of KRS 61.815(a), (c), or (d), but did not explain the lack of response to Wright’s request. 

Beshear first found that the county had violated the Open Records Act by not adequately responding to the request within the three-day period after receiving the request.  The request does not have to be fulfilled in three days, but the requester must be notified within that period that the agency will take further action on the request. 

As to the violations at the meeting, the fiscal court said that the item discussed immediately before the call for executive session was sufficient announcement of what was to be discussed in the session, and that quoting KRS 61.810(1)(g), was sufficient to give the reason for the session, ultimately claiming it met all statutory requirements for the executive session. 

The Attorney General's Office cited Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1977), which states that the strict letter of the law of the Open Meeting Act must be followed or it violates the public good. In 00-OMD-64, the attorney general's office determined from the Ratliff decision that the statute requires more than a recitation of the exemption statute, but less than a detailed description of matter to be discussed. 

In that same 2000 opinion, the attorney general determined that the notification at the meeting “must include 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 actions.”

Beshear found the fiscal court violated the Open Meetings Act on March 3. The attorney general, however, due to the lack of information on the record about the topic could not determine if an executive session was permissible if the proper procedure was followed performed.