Request By:
Mr. Jon L. Fleischaker
Wyatt, Grafton & Sloss
Twenty-eighth Floor
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the Kentucky Open Meetings Law as it pertains to informal gatherings of a quorum of a public agency where the business of the agency is discussed. The particular meeting you have in mind was one where three county commissioners held a private meeting to discuss personnel matters. The three commissioners, along with the county judge/executive, constitute the fiscal court. An informal opinion was expressed in a letter from this office to Mr. Tyler D. Cox on April 6, 1978. In that letter, the meeting in question was characterized as a "political caucus. " While the letter stated that the Open Meetings Law did not envision such a meeting, it carried the caveat, "We express no opinion as to the propriety or legality of holding such a political caucus. " You have asked that we reconsider this question.
Upon reconsideration, we consider that the use of the term "political caucus" in the informal opinion was unfortunate. The Kentucky Open Meetings Law, KRS 61.805-61.850, does not use that term. By contrast, the Open Meetings Law of the state of Indiana expressly exempts a caucus of a political organization from the Open Meetings requirement. Indiana Statute 5-14-1.5-2. Kentucky's Open Meeting Law defines a meeting in KRS 61.805(1) as follows:
"'Meeting' means all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and information or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. "
The section of the Open Meetings Law which pertains to exemptions, KRS 61.810, begins as follows:
"All 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 such agency, are declared to be public meetings, open to the public at all times, except for the following: . . ."
The foregoing statutes taken together define the types of meetings covered as to how they are convened and number of members present to bring the meeting under the strictures of the open meetings law. A "quorum" of the agency body must be present. As to a fiscal court of a county having commissioners, we must look to KRS 67.070 and 67.040. The former statute provides that, with stated exceptions, the law which applies to a fiscal court with magistrates applies to a fiscal court with commissioners. The latter statute, KRS 67.040(3), provides as follows:
"Not less than a majority of the members of the fiscal court shall constitute a quorum for the transaction of business. . . ."
Thus, in a fiscal court composed of the county judge/executive and three commissioners, a quorum shall be three members. In the case under review, three commissioners were present and they constituted a quorum even though the county judge/executive was not present and the meeting was not convened for the conduct of business as required by KRS 67.070(2).
If the three commissioners met in a casual gathering for information or in anticipation of or in conjunction with a regular or special meeting, the meeting should have been open and the media should have been notified regardless of where held. KRS 61.805 and 61.825. If the subject matter of the meeting allows a closed session under KRS 61.810, the meeting should be closed only after following the procedure set forth in KRS 61.815 as follows:
"(1) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session and the reason for the closed session;
(2) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(3) No final action may be taken at a closed session;
(4) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session. "
Under the stated facts, the informal opinion to Mr. Cox was erroneous and the meeting was in violation of the open meetings law.
In summary, it is the opinion of the Attorney General that all gatherings of a public agency, wherever held, and whether regular or special and whether formally convened or casual gatherings held in anticipation of or in conjunction with a regular or special meeting, where a quorum is present and any public business is discussed, are subject to all of the provisions of the open meetings law, KRS 61.805 to 61.850 and 61.991.