Request By:
IN RE: Kristi Willett/W. Todd Walton, II, Esq.
Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General on the appeal of Ms. Kristi Willett as the result of a letter she received from W. Todd Walton, II, Esq., the city attorney of the city of Flemingsburg.
In a letter to the Flemingsburg City Clerk, dated November 5, 1992, Ms. Willett requested documentation relative to the bidding and approval of the purchase of equipment for the city's recycling program. The request was made "after an apparent telephone vote made by a city employee to city council members leading to the purchase of paper recycling equipment at a cost of $ 10,000."
Mr. Walton, in a letter to Ms. Willett dated November 6, 1992, denied that the city violated the Open Meetings Act. He said in part that the purchase of paper recycling equipment was provided for by the city council in the budget ordinance for the fiscal year 1992-1993 as an appropriation for capital expenses for the city's streets and sanitation department. The administration and expenditure of all funds appropriated in the budget ordinance is an executive function performed by the mayor. The purchase of the equipment in question was undertaken at the direction of the mayor.
Mr. Walton stated that the mayor and the council members had viewed a demonstration of paper recycling equipment. Certain problems with the equipment were noted and the company subsequently made modifications in its equipment. The council members were individually notified at the mayor's request of those changes and corrections and were asked whether, in their opinion, the modified equipment would be suitable for the recycling program.
The polling of the council members regarding the recycling equipment was not a legislative act concerning a policy matter, according to Mr. Walton. The policy in this matter had already been established by the enactment of the budget ordinance providing for the purchase of the recycling equipment. The mayor was not required to consult with the council members during this phase of the purchasing procedure. "Only as a matter of courtesy and reassurance did the Mayor solicit the nonbinding opinions of the City Council members in this matter." The city attorney stated that the bidding requirements of KRS 424.260 are not applicable as neither of the items selected by the city exceeded the $ 10,000 figure set forth in the statute.
In her letter to the Attorney General, received November 12, 1992, Ms. Willett said she is forwarding information regarding a possible violation of the Open Meetings Act by the city council.
A city council can only take action at a properly called meeting attended by at least a quorum of the members and when a matter is approved by a vote of the majority of the quorum. See KRS 83A.060(6). In interpreting the provisions of the Open Meetings Act this office has previously stated that there is no statutory authority for a public agency to conduct a meeting, which is required to be open to the public, by telephone. See OAG 92-151, copy enclosed.
Since this matter has been presented to this office as an appeal under the Open Meetings Act (KRS 61.805 to KRS 61.850) the primary determination is whether the Open Meetings Act is applicable to what transpired, specifically the telephone calls at the mayor's direction to the individual council members.
KRS 91A.030 deals with the required annual municipal budget. No city shall expend any moneys from any fund except in accordance with the budget ordinance. KRS 91A.030(11) provides in part that the administration and implementation of an adopted budget ordinance shall be the responsibility of the mayor.
At the point in the purchase of the recycling equipment with which this appeal is concerned the mayor and the executive department of the city were proceeding pursuant to authority conferred upon them by the budget ordinance in the form of an appropriation by the city council. No meeting was held as none was required at this time and thus the provisions of the Open Meetings Act are not applicable. The mayor, as the head of the executive branch of government, was merely advising and updating the legislative branch on the proceedings undertaken pursuant to the budget appropriation.
In meeting the statutory obligation imposed upon the Attorney General under KRS 61.846(2) to determine if the public agency violated the Open Meetings Act, it is our decision that the city of Flemingsburg did not violate the Act with regard to the telephone calls made under the mayor's direction to the members of the city council concerning the recycling equipment.
Ms. Willett or The Ledger Independent may challenge this decision by filing an appeal with the appropriate circuit court within 30 days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.