By Mark Hansel
NKyTribune managing editor
The Independence City Council may have violated the Kentucky open meetings statute when it went into executive session at Monday’s meeting.
The private session was called to discuss a resolution related to approval of incentives included in the response to a request for proposal (RFP) from the Northern Kentucky Health Department to purchase a site for new administrative offices.
The response was submitted by Lakeside Christian Church for land it owns at Turkeyfoot Road and Industrial Road in Independence.
According to the RFP, the City of Independence agreed to contribute $100,000 toward the purchase if Lakeside Christian is chosen as the site for the offices. The City also agreed to provide maintenance at the site for 20 years at no cost to the Health Department.
The Kentucky General Assembly passed the Open Meetings Law in 1974 to provide the people with greater access to government. It requires agencies to open most meetings to the public, with a few exceptions.
Those exceptions, which are defined in KRS 61.810, allow for a private, or executive, session under certain circumstances. It can include anything from decisions of the state parole board to actions against an employee or discussion of pending litigation.
Independence City Attorney Jack Gatlin identified KRS 61.810 (b) as the reason for Monday’s executive session.
This provision of the statute indicates an exception to the open meetings law is permitted for:
“Deliberations 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”
While it is a public agency, the Northern Kentucky Health Department is considering the acquisition of property that is owned by Lakeside Christian Church, not the City of Independence. The City of Independence, as a municipality, has no influence on the Health Department’s decision where to purchase land.
In addition, the statute indicates the deliberations can only be private if publicity would be likely to affect the value of a specific piece of property. In this instance, the value of the property has been established and a purchase price identified through the RFP, which is a public document.
Public discussion would have no impact on the value of the property, as it relates to this transaction.
Gatlin would not provide any details regarding the executive session except to say that everything of substance that was discussed was made public when the City Council meeting resumed. He also said he felt certain that anyone on the city council would provide details of the meeting if asked.
It is accurate that several council members spoke in support of the resolution regarding the Health Department RFP when the meeting resumed and only Councilman Jim Bushong voted against it. Mayor Chris Reinersman also provided an opportunity for public comment, but no one came forward.
That is not the same, however, as hearing the discussion that preceded the nearly unanimous approval or possibly the reasons Bushong voted against it. The very purpose of the Open Meetings Law is to ensure that, whenever possible, the public has the right to hear as much of the process as possible.
Reinersman acknowledged, for example, that when the council gave initial approval for the $100,000 discount to be included in the RFP, it was also in an executive session.
Council members did not, at that time, weigh in on the agreement to provide free maintenance. The discussion that led council members to agree to that provision Monday took place in the executive session.
A spontaneous discussion among council members in an open forum might also have spurred questions from city residents and would have provided the insight into the process the General Assembly mandated in 1974.
The issue is not what was discussed, or whether it had any impact on the vote that was taken. The question is whether the discussion should have been allowed to take place in a closed session at all.
The Northern Kentucky Tribune plans to request a decision on the matter from the Kentucky Attorney General’s office.
The City of Florence also issued a response to the Health Department RFP for a site at its Government Campus on Ewing Boulevard. The Health Department Building Committee recommended approval of that proposal.
The Health Department Board is expected to choose one of the proposals at a meeting tonight.
Gatlin indicated in an email that the City Council vote Monday will allow the city to buy the property from Lakeside Christian Church, if the Health Department chose it as the site for its offices.
“The city is acquiring the real estate from the church and then selling to (the) health department at a discount. There were several details related to that transaction that had to be worked out.”
Reinersman previously indicated this was an option because the Health Department Executive Committee questioned whether the city’s decision to subsidize a private sale could withstand a legal challenge.
If the City purchases the property, the proposal submitted by Lakeside Christian Church, however, would seemingly be void. The City of Independence has never submitted a response to the Health Department’s RFP and the deadline for that has passed.
In order for the Health Department to consider purchasing the land from the City of Independence, it would seemingly have to reject the proposal submitted by the City of Florence and issue a new RFP.
Responses to an RFP are not made public until after the date for submission has passed to ensure the integrity of individual proposals.
A request for new RFPs after Florence has laid its cards on the table would be improper and the Health Department would almost certainly never consider such an action.
The Health Department Board Meeting takes place at 6:30 p.m. at the District Office, 610 Medical Village Drive in Edgewood. It is open to the public.
Contact Mark Hansel at mark.hansel@nkytrib.com