25-OMD-414 – Kelly Bush/Franklin City Commission

Opinion Content:

December 18, 2025

In re: Kelly Bush/Franklin City Commission

Summary: The Franklin City Commission (“the Commission”) did not
violate the Open Meetings Act (“the Act”) when it discussed a specific
proposal from a business entity in closed session under
KRS 61.810(1)(g). The Commission was not required to state the reason
for the closed session in detail because KRS 61.815(2) exempts
discussions under KRS 61.810(1)(g) from the requirements of
KRS 61.815(1). In view of the disputed facts, the Commission cannot be
found to have discussed or formulated proposed legislation in closed
session.

Open Meetings Decision

In a written complaint submitted under KRS 61.846(1), Franklin City
Commissioner Kelly Bush (“the Appellant”) alleged that the Commission had violated
the Act at its regular meeting on August 25, 2025, when it held a closed session to
discuss “proposed text amendments to the Planning and Zoning . . . regulations for
the I-2 Heavy Industrial Zoning District” that “would expand permitted uses to
explicitly include . . . Advanced Technology Centers [and] Integrated Energy
Systems.” The Appellant claimed the Commission’s “discussion involved substantive
public policy changes” and “[n]o valid statutory exception under KRS 61.810(1)
justified the closure” of the meeting. Further, the Appellant alleged the Commission
“immediately conducted a first reading of the amendments” upon returning to open
session, because “deliberation and consensus [had] occurred privately.” In addition,
the Appellant claimed the Commission failed to follow the procedural requirements
for entering a closed session. As remedies for the proposed violations, the Appellant
proposed that the Commission acknowledge the violations, mandate training, void
the first reading of the amendments, and issue a press release.

In a timely response to the complaint, the Commission denied violating the Act
and claimed it had followed proper procedure by announcing the closed session under
KRS 61.810(1)(f) and (g). 1 Additionally, the Commission stated that the Executive
Director of Economic Development for the Franklin-Simpson Industrial Authority
(“the Director”) attended the closed session “to discuss a new business” and informed
the Commission that “the topics he was about to discuss would jeopardize the siting,
retention, expansion or upgrading of a business.” According to the Commission, the
Director

explained that he was there on behalf of a new company that proposed
to locate a technology center in the city of Franklin. [The Director] also
explained the business, the potential for employment, and the fact that
they would need to create a power facility on site to operate the
technology center. There were questions from [the] Commissioners as to
the impact [on] infrastructure and other issues. [The Director] then
explained the need for the text amendments to the City’s Planning and
Zoning Regulations as there is no current zoning allowing for a
technology center, data center, and integrated energy systems. He
further stated that the business needed the text amendment in order to
continue their due diligence to potentially locate in the city.

The Commission further explained that “[i]t was clear that, without the text
amendments, the company would not consider the city of Franklin as a viable location
any further. Therefore, all of these discussions and the lack of Commission action on
the text amendments would definitely jeopardize the siting of this new industry in
Franklin.” The Commission emphasized that “the business clearly wanted to keep
information regarding their business private prior to discussions, which is why they
asked [the Director] to appear on their behalf.” This appeal followed.

Under KRS 61.810(1), “[a]ll meetings of a quorum of the members of any public
agency at which any public business is discussed or at which any action is taken by
the agency, shall be public meetings, open to the public at all times,” subject to certain
exceptions. Among these exceptions is KRS 61.810(1)(g), which exempts
“[d]iscussions 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 Appellant claims a public agency’s “discussions concerning a specific
proposal” from a business entity are not exempt under KRS 61.810(1)(g) unless they
are “discussions between a public agency and a representative of a business entity,”
and asserts the Director, as “a public official,” was not a proper representative of the

1 The issues relating to KRS 61.810(1)(f) are not at issue in this appeal.

business entity. It is well established, however, that KRS 61.810(1)(g) may apply to
a public agency’s discussions of a specific proposal from a business entity, “with or
without the representative” present, as long as the stated conditions apply. 05-OMD-
148; see also 23-ORD-078; 16-OMD-129; 03-OMD-089; 99-OMD-104; 94-OMD-119.

The Appellant further claims no specific proposal from a business entity was
discussed in the closed session. The Commission, however, states there was such a
specific proposal, and it describes that proposal in considerable detail. Ultimately,
the Office cannot resolve a factual dispute of this nature in this appeal under the Act.
See, e.g., 24-OMD-083. Further, the Commission asserts the business entity did not
wish to disclose its identity in public, so as not to jeopardize the siting of the proposed
technology center. The Appellant, for his part, has presented no evidence that the
nature of the entity’s proposal is public knowledge. See, e.g., 16-OMD-129; 94-OMD-
119 (finding KRS 61.810(1)(g) inapplicable when the business proposal was publicly
known). Although the extent to which open discussions of the proposal would have
actually jeopardized the siting of the business is not clear, the Office cannot find a
violation of the Act “[w]hen the record is inconclusive” on that issue. 23-OMD-078;
see also 17-OMD-044. Accordingly, the Commission has presented sufficient evidence
that KRS 61.810(1)(g) authorized its closed session to discuss a specific proposal from
a business entity.

Although the closed session was authorized for that specific purpose, the
Appellant also claims the Commission violated the procedural conditions for
announcing a closed session. Under KRS 61.815(1)(a), “[n]otice shall be given in
regular open meeting of the general nature of the business to be discussed in closed
session, the reason for the closed session, and the specific provision of KRS 61.810
authorizing the closed session.” However, even assuming the Commission did not
comply with that provision, such noncompliance would not have violated the Act.
Under KRS 61.815(2), “[p]ublic agencies and activities of public agencies identified in
paragraphs (a), (c), (d), (e), (f), but only so far as (f) relates to students, (g), (h), (i), (j),
(k), (l), and (m) of subsection (1) of KRS 61.810 shall be excluded from the
requirements of” KRS 61.815(1). Here, the Commission’s contested action in closed
session occurred pursuant to KRS 61.810(1)(g), which is one of the exemptions cited
in KRS 61.815(2). In Cunningham v. Whalen, 373 S.W.3d 438, 441 n.12 (Ky. 2013),
the Supreme Court of Kentucky stated that an exemption listed in KRS 61.815(2)
relieves a public agency “from the requirements of announcement of a closed session
and a public vote on holding a closed session, as well as the requirement that no final
action be taken.” See also 22-OMD-057. In light of these authorities, the Office cannot
find that the Commission violated the Act by failing to comply with KRS 61.815(1)(a).

The Appellant’s principal argument, however, is that the Commission
exceeded the limits of KRS 61.810(1)(g) by discussing in closed session a proposed
legislative change, which directly pertains not to a specific business proposal, but to

a public rule of general application. Under KRS 61.800, all exceptions to the Act “shall
be strictly construed.” Here, the Appellant alleges the Commission was not only
presented with proposed amendments the business entity wished to see adopted, but
“reviewed and shaped those amendments in closed session” (emphasis added). The
“basic policy of [the Act] is that the formation of public policy is public business and
shall not be conducted in secret.” KRS 61.800. Thus, the discussion “of potential
amendments to [local legislation] is the epitome of activity intended by the
legislature” to be conducted in public. 12-OMD-118; see also 08-OMD-153 (finding the
adoption of an ordinance was not a proper subject for discussion in a closed session).

The Commission, however, denies this allegation, stating, “At no time during
the discussions in closed session were any suggested changes made to the text
amendments or any of the wording. They were simply presented ‘as-is’ from the
company’s attorney for consideration by the Planning and Zoning Commission and
City Commission.” Therefore, the Commission asserts “there were no text
amendments or public policy formed or drafted in closed session.” The Commission
also provides an affidavit from the Director stating, in part, that “there were no
specific discussions or negotiations as to the contents of the text amendments as
presented” and he does not “recall being asked to propose any changes to the language
in the text amendments back to the company in either closed or open session.” The
Director affirms that “[m]ost, if not almost all, of the discussion revolved around what
the company was going to do, potential power and utility usage, and employment.” In
view of this factual dispute, the Office cannot find that the Commission exceeded the
scope of KRS 61.810(1)(g) by discussing or formulating proposed legislation in closed
session. Accordingly, the Commission did not violate the Act. 2

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to [email protected].

2 The Commission argues that this appeal “could be dismissed as moot” because the Franklin
Planning and Zoning Commission recommended against adopting the amendments and the
Commission accepted that recommendation. Although 40 KAR 1:030 § 6 provides circumstances in
which an open records appeal may be rendered moot, there is no similar provision regarding mootness
of an open meetings appeal. The Office has found open meetings appeals moot only when “a public
agency concedes the open meetings error alleged,” 17-OMD-256 (quoting 06-OMD-008), and agrees “to
implement corrective measures,” 07-OMD-022.

Russell Coleman
Attorney General

/s/ James M. Herrick
James M. Herrick
Assistant Attorney General

Mr. Kelly Bush
W. Scott Crabtree, Esq.
Hon. Larry Dixon