Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
IN RE: The News-Enterprise /Hardin Fiscal Court
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by David Greer of The News-Enterprise from the written response of Ken M. Howard, Esq., Hardin County Attorney. Mr. Greer maintains that the position taken by Mr. Howard on behalf of the fiscal court is in violation of the Open Meetings Act.
In a letter to the county judge-executive, dated September 28, 1994, Ronald D. Hawkins, a staff writer for The News-Enterprise, requested that he be notified of the time and place of all meetings of an organization called the "2010 Group." Mr. Hawkins maintained that the group is a public agency subject to the terms and provisions of the Open Meetings Act.
Ken M. Howard, Esq., Hardin County Attorney, responded to Mr. Hawkins, on behalf of the county judge-executive, in a letter dated October 11, 1994. Mr. Howard stated that the 2010 Group is not subject to the Open Meetings Act. He said the group is not a public agency as that term is defined in KRS 61.805(2). The 2010 Group is an informal group which meets on a periodic basis to improve communication and cooperation among the governmental units within Hardin County. It has no formal authorization, no formal membership, and no formal agenda or minutes. It does not take any formal action and it makes no formal recommendations. The group's get-togethers are primarily attended by the county judge-executive, the mayors of four cities, the county attorney, two city attorneys and other invited guests.
In a letter to this office, received October 28, 1994, David Greer, the editor of The News-Enterprise, maintains, in effect, that the 2010 Group is a public agency and subject to the terms and provisions of the Open Meetings Act.
KRS 61.805(2) defines the term "public agency" and after reviewing the eight subsections of that definition, we conclude that the group involved is not a public agency under the Open Meetings Act. The group is not a state or local government board, commission, or authority. It is not a state or local legislative board, commission, or committee. It is not a county or city governing body, council, school district board, special district board, or municipal corporation. It is not a state or local government agency created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act. It is not a body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government. It is not an entity where the majority of the governing body is appointed by a public agency, a member or employee of a public agency, a state or local officer, or any combination thereof. It is not a board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency established, created, and controlled by a public agency. Finally, it is not an interagency body of two or more public agencies.
Contrast the definition of public agency under the Open Meetings Act with the definition of public agency under KRS 61.870(1) of the Open Records Act which in subsection (a) provides that public agency means, "Every state or local government officer."
Both parties have cited the case of Lexington Herald-Leader v. University of Kentucky, Ky., 732 S.W.2d 884 (1987). The committee in that case was created by formal action of a public agency while the group in this appeal, although composed primarily of public officials, was not established by the city or county or any other public agency.
We are not dealing with a situation where a quorum of the city council or the fiscal court is present at a gathering as that, obviously, would create a circumstance where the provisions of the Open Meetings Act would mandate an open and public meeting. Involved here is a gathering of public officials, legislative and executive, from various governmental entities, meeting voluntarily and not pursuant to any statute, ordinance, order, resolution, or any other kind of act of any public agency.
It is, therefore, the decision of the Attorney General that a group consisting primarily of public officials but which does not exist pursuant to statute, ordinance, order, resolution or any act of any public agency is not itself a public agency subject to the terms and provisions of the Open Meetings Act.
The News-Enterprise may challenge this decision by initiating action in the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.