Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Madisonville violated the Open Meetings Act when a committee created to review the city's existing sign ordinance and recommend changes failed to comply with the requirements of the Act in conducting its meetings. For the reasons that follow we find that the sign committee is a public agency as defined in KRS 61.805(2)(f), and that it violated the Open Meetings Act by failing to comply with the requirements of the Act.
On May 14, 1998, Richard E. Moore submitted a written complaint to the Zoning Administrator of the City of Madisonville, Debbie Todd, in which he alleged that the city's sign committee violated the Open Meetings Act at its May 13, 1998, meeting. Mr. Moore complained that the committee excluded the public, and that it failed to maintain minutes of the meeting. He proposed that the city set aside the committee's recommendations for amending the sign ordinance, and that it begin the process anew by appointing a new committee to consider the existing sign ordinance. Ms. Todd did not respond to Mr. Moore's complaint, and on May 26, 1998, he initiated this appeal.
Upon receipt of this office's notification of open meetings appeal, Madisonville City Attorney Joe A. Evans contacted us to explain the city's position. Relying on 96-OMD-174 and 94-OMD-148, he argued that the committee is an informal working group and not a public agency. Mr. Evans indicated that the committee members were informally selected and "not appointed by executive order, resolution, or by any action taken by the Madisonville City Council." Further, the committee "has no authority to take any action for or on behalf of the City or any other public agency. The City of Madisonville is free to accept or reject in whole or in part any proposal ultimately submitted."
In a subsequent letter Ms. Todd explained the genesis of the sign committee:
Upon becoming Zoning Administrator, I realized that our present sign ordinance was outdated making it nearly impossible to administer and enforce, and advised the Mayor I would like to organize a citizens committee to help update our present sign ordinance. Agreeing with me that an update was overdue, he gave me permission to organize a committee and gave me the names of a couple of people he wanted me to ask to serve, which I did. In addition, I asked the Director of our local Chamber for a list of a few of their members who they thought would be willing to serve on the sign committee. I contacted several of these Chamber members, trying to select persons who represented a variety of businesses.
I also enlisted the help of the Director of Discover Downtown and one of their board members who, at one time, helped draft sign regulations for the downtown area.
In addition to the above persons, I asked the PVA Administrator, Planning Commission Director, City Engineer, the council committee for zoning and [Mr. Evans] to serve on the sign committee. We had a total of 18 persons who ultimately served on the committee. During the course of our meetings, one member resigned and was replaced by another business person without any consultation or input from the Mayor.
Again, it was Ms. Todd's position that the sign committee is not a public agency for purposes of the Open Meetings Act.
It is the opinion of this office that the sign committee is a public agency, as that term is defined in KRS 61.805(2)(f), and that "any other holding would clearly thwart the intent of the law."
Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987). That statement of intent is set forth at KRS 61.800 which provides that "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." In construing this provision, the courts have held that public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny,"
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997) since "[t] his is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency." Presidential Search Committee at 886.
KRS 61.805(2)(f) defines the term public agency as "any entity when the majority of its governing body is appointed by a 'public agency' as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a 'public agency, ' a state or local officer, or any combination thereof." This provision does not require a formal act of establishment or creation by the municipality. Nor does it require that the entity be empowered to take action by or on behalf of the municipality. Clearly, the sign committee which is the focus of this appeal plays a critical role in the formation of public policy. It has reviewed the city's existing sign ordinance to determine the need for change, participated in the drafting of a new sign ordinance reflecting the input and suggestions of its membership, and recommended a draft ordinance to the city council. The fact that it was not created by executive action and that it serves a purely advisory function therefore does not alter our conclusion that it is a public agency. See, e.g., Presidential Search Committee , above, OAG 89-25; OAG 91-54.
We do not believe that the decisions cited by the City of Madisonville are controlling. In 94-OMD-148 we held that an informal group which met on a periodic basis to improve communication and cooperation among the governmental units in Hardin County was not a public agency within the scope of KRS 61.805(2). We reached the same conclusion in 96-OMD-174 when we examined a group of city and county officials which met, apparently on a single occasion, to discuss "executive actions pursuant to existing budget appropriations. . . ." 96-OMD-174, p. 2. In both instances, this office recognized that the groups did not fall within any of the definitions of a public agency found in KRS 61.805(2), and that they had "no formal authorization, no formal membership, no formal agenda or minutes, . . . took no formal action, made no formal recommendations, and did not meet as the result of any action of any public agency. " 96-OMD-174, p. 3.
These groups are markedly different from the sign committee at issue in this appeal. As noted above, a majority of the committee's members were appointed by the zoning administrator, a local official, and the committee therefore falls within the parameters of KRS 61.805(2)(f). Moreover, the sign committee appears to have had a formal membership. Ms. Todd indicates that during the course of the committee's meetings, one member resigned and was replaced by another individual. This statement suggests a continuity of membership not present in 96-OMD-174 and 94-OMD-148. Finally, the committee made a formal recommendation to the City of Madisonville when it presented its proposed sign ordinance to the city council. For these reasons, we conclude that the sign committee is a public agency, and that its meetings are governed by the Open Meetings Act.
KRS 61.810(1) provides that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times. . . ." A meeting is defined as "all gatherings of any kind, 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 61.805(1). "The express purpose of the Open Meetings Act, " the Kentucky Supreme Court recently noted, "is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." Floyd County Board of Education at 923. Although no apparent effort was made to exclude the public from its meetings, the sign committee violated the Open Meetings Act by failing to comply with the notice requirements for special meetings set forth at KRS 61.823, and by failing to maintain minutes of those meetings as required by KRS 61.835. We find no error in its refusal to permit the public to participate in its discussions or to set aside a time for public comment. As Mr. Evans correctly notes:
While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency.
95-OMD-99, p. 2. In sum, we find that the sign committee is a public agency for purposes of the Open Meetings Act, and that its actions were at least partially violative of that Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.