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 by Paul L. O'Brian, Chairman of the Citizens for Ethical Government, as the result of the written response he received from Charles Boland, Aide to the Mayor of the Lexington-Fayette Urban County Government.
In a letter to the Mayor, dated August 14, 1995, Mr. O'Brian and other members of his organization made in part the following statements and accusations:
You and twelve (12) council members attended the above private organization's conference [Greater Lexington Chamber of Commerce]. We contend that this gathering of members of a public agency constitutes a violation of the Kentucky Open Meetings Act, KRS 61.805 to 61.850.
Meetings of elected officers out of the public view must end today. Furthermore, the public is entitled to a prompt, complete report of what public business was discussed on the Greenville trip, such as the feasibility of privatization of solid waste hauling, and the ice hockey team franchise business plan with its promised subsidy of government funds.
Mr. Boland replied, on the Mayor's behalf, in a letter to the Citizens for Ethical Government, dated August 25, 1995. He said in part that the purpose of the trip, organized by the chamber of commerce, rather than the city, for both the government and the private sector participants, was to review operations in other municipalities which could be applied to Lexington. Mr. Boland said the council called no meetings during the trip and no final actions of any type were taken. His response concluded by stating that any ideas generated during the trip are subject to the "same discussions and publicity as any program brought before the Council."
In his letter of appeal to this office, received September 18, 1995, Mr. O'Brian maintained that the response from the Mayor's office was received eight days after the time set by law. In addition, Mr. O'Brian said that the city's response "indicates that Urban County Council members and the mayor believe they are justified in meeting out of the public view and discussing public business. "
Since we do not know the precise dates on which the city received Mr. O'Brian's letter and when he received the city's response, we can only refer the parties in this appeal to KRS 61.846(1) which states in part as follows:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.
If the city did not notify in writing the complaining party of its decision within the statutorily mandated time frame it violated the Open Meetings Act, specifically KRS 61.846(1).
KRS 61.805(1) defines "meeting" as follows:
"Meeting" means all gatherings of every kind, including video teleconferences, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting[.]
KRS 61.810(1) provides that all meetings of a quorum of the members of a public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings and open to the public at all times with some statutorily recognized exceptions.
While the definitions of a public meeting are rather broad this office, as exemplified by OAG 78-634, copy enclosed, has consistently recognized that a quorum of the members of a public agency may attend a professional or social event, such as a convention, without violating the Open Meetings Act. In OAG 78-634, this office said in part as follows:
It is our opinion that when a quorum of the Commission attends a meeting which is convened by an authority or association other than the Commission, such a meeting is not a meeting of a quorum of the Commission within the meaning of KRS 61.810. It is only when the Commission itself by the direction of the chairman or some of its members convenes the meeting that the Open Meetings Law comes into play.
In
State ex. rel Badke v. Village Board, 494 N.W.2d 408 (Wis. 1993), the Supreme Court of Wisconsin was dealing with that state's definition of "meeting." The court concluded in part that the Open Meetings Law applied to the meeting in question as it was not a social or chance gathering under the Wisconsin definition of "meeting" which excluded "any social or chance gathering or conference which is not intended to avoid this subchapter." See the court's opinion at pages 414 and 417.
While the Kentucky law does not have a specific exemption such as that contained in the Wisconsin statute, we do not believe the Kentucky law requires a conclusion that attendance of a quorum of the members of a public body at a convention or conference organized by someone other than the public agency constitutes a meeting of the public agency. If that were the case a quorum of the members of the urban county council could not, at any time during their service as council members, attend gatherings sponsored by the Kentucky League of Cities or the Kentucky Association of Counties or any other educational or social event without constituting a meeting of the council.
It is, therefore, the decision of the Attorney General that the attendance by a quorum of the members of the urban county council at a convention or conference organized by someone other than the council does not in and of itself constitute a meeting of the council. Council members attending such a convention or meeting are not authorized to take action affecting their city nor are they permitted to discuss matters directly affecting their city.
A party aggrieved by this decision may challenge it by filing an appeal with 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.