Request By:
Mr. Philip C. Winslow
The Commonwealth Journal
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General pertaining to the Kentucky Open Meetings Law, KRS 61.805-61.850. Your concern is as to the legality of the Somerset City Council's attempt to close meetings of its advisory committees. You state that there are 15 city council committees whose members are appointed by the Mayor with each new administration and the committees are assigned to deal with certain administrative functions and departments of the city government; all of the committees have four city council members except planning and zoning, which has one, community development, which has three, ambulance board, which has one, and industrial foundation, which has one; you have been advised by city officials that committee members may at their whim hold their meetings behind closed doors because their membership does not constitute a quorum of the city council and because the committees are not created by official legislative act, functioning only as advisory bodies without the power to vote or take action.
In order to deal with your question concerning whether the described committees are required to hold open meetings under the Kentucky Open Meeting Law, we must first determine whether the committees are public agencies under the definition provided in KRS 61.805. The pertinent part of that statute reads as follows:
"'Public agency' means any . . . city, . . . any committee, and hoc committee, subcommittee, or advisory body of a public agency which is created by or pursuant to statute, executive order, local ordinance or resolution or other legislative act . . ."
From the information you have provided, we conclude that the so-called "committees" have not been created by a legislative act of the city council and that the mayor does not have the authority to create such committees composed of city council members by executive order. A mayor may create advisory committees composed of citizens to advise him on various subjects but, for reasons we will explain below, he cannot create committees composed of council members. Advisory committees are not public agencies under the Open Meetings Law. OAG 78.571.
MAY THE MAYOR APPOINT COMMITTEES COMPOSED OF CITY COUNCILMEN?
The 1980 Session of the General Assembly enacted KRS Chapter 83A, organization of government in cities. KRS 83A,130 prescribes the legislative and administrative or executive functions in a city with the mayor-council plan of city government and provides that the legislative power resides in the city council and the administrative power resides in the mayor, and that the two functions are to be kept separate, not intermingled. KRS 83A.130(3) reads as follows:
"The executive authority of the city shall be vested in and exercised by the mayor. The mayor shall enforce the mayor-council plan, city ordinances and orders and all applicable statutes. He shall supervise all departments of city government and the conduct of all city officers and employees under his jurisdiction and shall require each department to make reports to him required by ordinance or as he deems desirable. The mayor shall maintain liaison with related units of local government respecting interlocal contracting and joint activities. The mayor shall report to the council and to the public on the condition and needs of city government as he finds appropriate or as required by ordinance, but not less than annually. He shall make any recommendations for actions by the council he finds in the public interest."
KRS 83A.130(7) reads as follows:
"Any delegation of the mayor's powers, duties or responsibilities to subordinate officers and employees and any expression of his official authority to fulfill executive functions shall be made by executive order. Executive orders shall be sequentially numbered by years and shall be kept in a permanent file."
KRS 83A.130(11) reads as follows:
"The legislative authority of the city shall be vested in and exercised by the elected council of the city. The council shall not perform any executive functions except those functions assigned to it by statute. Regular meetings of the council shall be held at least once each month at such times and places as are fixed by ordinance. Special meetings of the council may be called by the mayor or upon written request of a majority of the council. In the call, the mayor or council shall designate the purpose, time and place of the special meeting with sufficient notice for the attendance of council members and for compliance with KRS Chapter 61. [The Open Meetings Law. ] At a special meeting no business may be considered other than that set forth in the designation of purpose. The minutes of every meeting shall be signed by the person responsible for maintaining city records provided under KRS 83A.060 and by the officer presiding at the meeting."
Since subsection (11) prohibits the city council from performing executive functions, the mayor cannot appoint city councilmen to committees to oversee or advise on administrative matters. [This is in contrast to the commission plan of city government provided in KRS 83A.140 where the city commission is given "all legislative, executive and administrative authority of the city."]
We believe that the legislative intent of KRS 83A.130 is to prescribe the same type of separation of powers in city government as section 27 of the Kentucky Constitution provides for state government, that is, that the legislative, executive and judicial departments are confined "to a separate body of magistry." Under those terms, the mayor is confined to administration and the city council is confined to legislation. [See OAG 80-273 and OAG 80-551.]
The committees you have described are not authorized or contemplated by the statute and are not public agencies under the Open Meetings Law.
Committees which are created by legislative act of the city council are public agencies and are required to hold open meetings subject to the provisions of KRS 61.810.