The Kentucky Supreme Court made up for lost time when, on September 28, it issued an opinion upholding the public’s right to know in an open meetings case argued just 44 days earlier.
The case involved the Advocate Messenger’s challenge to closed sessions conducted in 2012 by the Danville Board of Commissioners to discuss the purchase of a building to house the city’s public works department. It was the subject of an earlier Center for Open Government blog in which we questioned why five years had elapsed between the dates on which the incidents occurred that prompted the newspaper’s legal challenge and the oral argument that resulted from that challenge .
Whatever the reason, the Supreme Court resolved the appeal quickly and, more importantly, resolved the appeal correctly.
The Court affirmed the attorney general, the circuit court and the Court of Appeals in concluding that closed board meetings at which the commissioners agreed to bid on a building that had come up for sale at an absolute auction — and decided on a maximum bid — were impermissible under the open meetings exception for “[d]eliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency.”
The board’s reliance on the exception, the Court concluded, was misplaced “based on basic principles of contract formation applicable to auction sales, and importantly, under the [unique] facts of this case.”
It is the “wrinkle that makes this case unique” that also limits its precedential value for future appeals. Having made the winning bid, “the city ultimately was obligated to purchase the property, with the decision to bid on and to buy the property having been made in closed session in violation of the Act. The board’s post auction approvals, albeit conducted in public, were window-dressing. . . .”
But regardless of how often it is cited in future open meetings disputes, Board of Commissioners of the City of Danville v. Advocate Communications, Inc. D/B/A The Advocate Messenger represents a victory for the principle of open government.
Open meetings disputes rarely reach Kentucky’s appellate courts, and opinions reaffirming the public’s right to know are enthusiastically welcomed. The appellate courts issued the last significant opinions in 2012 and 2013.
Unfortunately, the Advocate Messenger must absorb the cost of this protracted legal battle. The Supreme Court reversed the Court of Appeals’ award of attorneys’ fees and costs based on the latter court’s determination that the board “deliberately elected to ignore the requirements of the Open Meetings Act when it proceeded to discuss public business in private” and that “[i]ts conduct was unquestionably willful as construed by City of Fort Thomas [v. Cincinnati Enquirer].”
Again noting that “this case is unique,” the Supreme Court concluded that the violation resulted more from the board’s “misconception of the law applicable to bidding at public auction without reserve, than from a willful attempt to violate the Act.”
But the lesson learned, though it comes at a high cost to the newpaper, is invaluable. That lesson, as we noted in our August 17 blog, is simply this: “the legislature has fixed the scope of permissible closed session discussion, and public agencies have no authority to exceed the permissible scope. The injury to the public lies in the violation of the [Open Meetings Law] and – ultimately — the breach of the public trust.”