Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal from the written response of Joseph H. Mattingly III, Esq., County Attorney of Marion County. Mr. K. L. Jones is dissatisfied with the county's handling of his complaint relative to fiscal court meetings.
In a letter dated January 22, 1993, which was apparently resubmitted to the County Judge/Executive on February 2, 1993, Mr. Jones set forth three matters of concern.
The first matter involved what he described as an illegal meeting among the magistrates, the county judge/executive and the county attorney in the county judge's office behind closed doors prior to the fiscal court's scheduled meeting on January 19, 1993.
The second matter concerned telephone calls involving the county attorney and the magistrates and the preparation of a proposed ordinance to be presented at the fiscal court meeting on January 19, 1993.
The third matter pertained to the time of the fiscal court meetings. Apparently fiscal court meetings normally begin at 9:00 a.m. which Mr. Jones maintains is not a convenient time for the public. He suggests that meetings be held on Saturday mornings or in the evenings on weekdays.
In a letter dated February 5, 1993, and addressed to Mr. Jones, the Marion County Attorney addressed the issues raised by Mr. Jones.
He stated in part that the 9:00 a.m. starting time for fiscal court meetings violates neither the letter nor the spirit of KRS 61.820.
The county attorney further stated that at the fiscal court meeting on January 2, 1993, he was directed to draft a proposed ordinance amending the previously enacted solid waste management ordinance. The proposal would be considered at the fiscal court's meeting scheduled for January 19, 1993.
The county attorney circulated a proposed draft among the magistrates and requested that they advise him by telephone as to any suggested modifications so that another draft ordinance could be presented to the fiscal court at the January 19, 1993 fiscal court meeting. While the magistrates individually contacted the county attorney none of them indicated whether he would vote for or against the proposed ordinance and there was no attempt to reach any kind of "consensus" with the magistrates. The proposed ordinance was based on comments and suggestions made to the fiscal court at prior meetings, on written suggestions submitted to the county judge/executive and through information gathered at informal meetings between citizen groups and fiscal court members. The county attorney maintains that the public had an important role in the development of the ordinance in question.
In regard to the alleged illegal meeting that took place in the county judge's office, the county attorney admits that while the county judge/executive and some of the magistrates were present in the office at that time no provisions of the Open Meetings Act were violated. No discussions of public business took place as the assembled officials were individually reading through the proposed ordinance. In his letter to Mr. Jones the county attorney concluded as follows:
However, in order to eliminate the possible perception that public business is being discussed prior to the regularly scheduled Fiscal Court meetings, I have advised the County Judge Executive and the members of the Marion Fiscal Court that hereafter they would gather in the meeting room to await the opening of the meeting rather than in the Judge's office. Hopefully this will clear up any misimpression by the public.
Mr. Jones' letter of appeal was received by the Attorney General's Office on February 9, 1993.
KRS 61.820 provides in part that all meetings of all public agencies shall be held at specified times and places which are convenient to the public. While a 9:00 a.m. starting time may be inconvenient for those who work during the daytime and while that time is apparently inconvenient for Mr. Jones, we cannot conclude in this decision on the basis of what has been made available to this office that 9:00 a.m. is an inconvenient time for the public in Marion County. It may be that evidence could be introduced to support such an allegation but the material available at this time does not establish that 9:00 a.m. is an inconvenient time for fiscal court meetings to be held in Marion County.
The Open Meetings Act provides in KRS 61.810(1) that 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 the public agency are public meetings. The Act, as amended by KRS 61.810(2), even deals with situations where a gathering of less than a quorum of the members can constitute a public meeting. The intent of such a provision appears to be to prohibit public bodies from making decisions in small groups to avoid complying with the Open Meetings Act.
In the situation relative to this appeal the county attorney, at the direction of the fiscal court, was preparing a proposed ordinance and in connection with that matter he requested comments and suggestions from the fiscal court members. This was merely part of the process involved in the formulation of the proposed ordinance as information and material also came from other sources. No final decisions or commitments were made by anyone to the county attorney relative to the ordinance prior to its consideration by the fiscal court at its meeting scheduled for January 19, 1993.
We do not believe that the Open Meetings Act prohibits all contacts by and among the members of a public agency outside of an open and public meeting. When, as here, a draft of an ordinance was being prepared for discussion at an open and public meeting and the person preparing the draft merely sought comments and suggestions from the individual fiscal court members relative to the terms and provisions of that ordinance, there is no violation of the Open Meetings Act.
As to the alleged illegal meeting that took place in the county judge's office among various fiscal court members prior to the fiscal court meeting, we can only conclude that such a gathering took place. If, as the county attorney maintains, no public business was discussed, then the Open Meetings Act was not violated.
However, such a closed gathering of public officials prior to a called meeting of that public body "looks bad" and conveys an impression of behind the scenes manipulations and dealings. To avoid such impressions, even if nothing illegal occurred, we think the county attorney wisely advised that the fiscal court should avoid such gatherings and congregate in the open and public meeting room prior to its meetings.
Either the appealing party, Mr. K. L. Jones, or the Marion County Fiscal Court 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.