Friday 29th March 2024

AG: Glasgow Council violated law during closed session discussion about park

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Danny Basil, Glasgow attorney, listens as a spectator speaks at a meeting of the Glasgow City Council.
(BRENNAN CRAIN/WCLU NEWS)

GLASGOW — A recent opinion issued by the attorney general of Kentucky concluded the city of Glasgow did not follow the state’s Open Meetings Act when it entered a closed session at one of its recent council meetings, and it failed to respond to a complaint in a timely manner.

The Glasgow City Council met on March 14 and was slated to hear from Wes Simpson, the chairperson of a committee charged with overseeing the development of a park near downtown. Simpson told the council that Jason Halligan, the downtown park steering committee’s legal counsel, recommended the Council enter an “executive,” or closed session, to discuss a development plan pertaining to the park. So, they did.

WCLU News issued a complaint the following day to Glasgow Mayor Harold Armstrong.

A copy of the construction development plan, which was submitted by Scott, Murphy & Daniel Construction, was provided to WCLU News last November. The document was obtained through an open records request filed at Glasgow City Hall. But city officials continued to assert they had a basis for the closed session away from the public.

There was a brief hesitation among Danny Basil, Glasgow’s attorney, and Armstrong before they agreed to enter the closed session. Councilpersons Patrick Gaunce and James “Happy” Neal made motions to enter the closed session. The rest of the body followed.

The city’s closed session lasted nearly an hour before the governing body’s members reentered the council chambers and said no action would be taken behind closed doors. The mayor said the closed session was simply held to “look at some information about the Downtown Park.”

The city of Glasgow responded late to WCLU News’ complaint with a letter on March 21 and said they did not know the record was provided to the organization. They called its release “a mistake” and asked that the plans be kept confidential.

“If we had known you had a copy, the Council may have taken a different approach,” said a letter to WCLU News.

A public agency by law has three business days to respond to a complaint like the one submitted by WCLU News. Glasgow responded within four days.

An investigation after WCLU News’ complaint was submitted revealed the construction plans were not given to anyone else in the public, according to a letter Basil wrote to the attorney general’s office. Because news organizations are not any more entitled to public records than the average citizen, the release of the records was assumed to be permissible.

The city relied upon a law known as KRS 61.810(1)(g), which allows a closed session for “discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion, or upgrading of the business.”

The attorney general said the city did not invoke the law correctly, however.

“KRS 61.810(1)(g) applies expressly to businesses, not real estate development projects,” according to the opinion narrative.

The law invoked by the city enables a closed session when it might threaten the “siting, retention, expansion, or upgrading of the business.” The attorney general reasoned the site of the project is known – downtown Glasgow – and the construction company will simply build the park, not operate it. Because of these facts, the office concluded the city did not meet its “burden” to justify that the project’s siting or expansion and upgrade might be threatened if an open session were held.

The attorney general also described in the opinion that the city’s argument regarding the threat to the project’s retention was “speculative.” The city said it may “still decide to reopen the [request for proposals] to receive additional proposals,” according to a response to WCLU News’ complaint.

“No evidence has been presented, at this juncture, to conclude that the City will reopen the bidding process,” the opinion said.

A final aspect of the attorney general’s opinion centered around the city’s reliance on a law called the “Model Procurement Code,” which is another set of laws to govern the bidding process. That law requires an offeror’s presence when a public agency discusses the matter in a closed session. No representative from Scott, Murphy & Daniel was present, so the opinion reasoned the laws were not correctly invoked.

There is a caveat to the Open Meetings Act, which allows public agencies to discuss business proposals behind closed doors without a representative of a business. That’s found in KRS 61.810 (1)(g).

“[T]he City violated the Act when it discussed public business in closed session when no exception to the Act authorized those specific discussions to be conducted in closed session,” the opinion said.

The city does not plan to discuss the matter in closed session in the future, according to a letter sent to WCLU News. The construction plans are presumed to be a matter of public record now despite the city’s earlier reasoning that they were “not a matter of public record.”

The downtown park project’s next venture is to appear before the city’s finance committee on April 19. The meeting is scheduled inside Glasgow City Hall at 5:30 p.m.

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