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 Franklin County Fiscal Court violated the Open Meetings Act when it excluded the public from the April 19 and April 26, 1999, meetings of its Finance and Budget Committee. For the reasons that follow, we find that the Finance and Budget Committee of the Franklin County Fiscal Court is a public agency as defined in KRS 61.805(2)(g), and that it violated the Open Meetings Act by failing to comply with the requirements of the Act.
On April 26, 1999, State Journal reporter Alex DeGrand submitted a written complaint to Franklin County Judge/Executive Teresa Barton in which he alleged that the Fiscal Court Finance and Budget Committee violated the Open Meetings Act at its April 19 and April 26 meetings. Mr. DeGrand complained that the committee failed to give notice of, and excluded the public from, these meetings. He proposed that the Fiscal Court remedy these violations "by notifying the public of all future meeting dates and times for this committee."
In a response dated April 28, 1999, Judge Barton notified Mr. DeGrand that she had acted upon "the advice of legal counsel and [would] proceed in accordance with the letter from the county attorney dated April 23, 1999." In that letter, which was addressed to Mr. DeGrand, Franklin County Attorney Jim Boyd expressed the view that the Finance and Budget Committee is not subject to the Open Meetings Act. He explained:
The Budget Committee does not constitute a quorum of the Fiscal Court and only makes recommendations to the entire Fiscal Court, at which time the Act would apply.
Individual subcommittee members meet with less than a full quorum of the Fiscal Court when they meet to discuss issues common to that subcommittee and the issues discussed are not shared or proposed to members of another subcommittee until a full open Fiscal Court meeting is held, thus members attending one or more of the meetings never collectively constitute a quorum of the members of the Fiscal Court.
This committee has no legal authority to act and therefore OAG 93-OMD-63 [sic] "if a quorum is not present the meeting in question is not a public meeting."
Shortly after he received Judge Barton's response, Mr. DeGrand initiated this appeal.
In a supplemental response addressed to this office, Judge Barton reiterated that she had based her decision to close the April 19 and April 26 budget meetings on the advice of the county attorney. She indicated that she was:
very comfortable with that legal advice since it is our opinion that this structure clearly falls under the exceptions to open meetings. Specifically, the establishment of these small working groups were to educate, inform, and include employees, department heads, appointed officials, and elected officials. No formal action is taken by these groups and a quorum of fiscal court is never present. The structure of these committees mirrors that of a local cabinet meeting and would be safely described as a meeting mentioned on page 13 of the publication prepared by your office, The Kentucky Open Records and Open Meetings Act, Your Duty Under the Law . It additionally states, "This ? does not preclude discussions between individuals if the purpose of the discussion is to educate the members on specific issues."
In closing, Judge Barton acknowledged that this question "appears to be ambiguous and requires interpretation...."
KRS 61.805(2)(g) defines the term public agency as:
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection[.]
The Franklin County Fiscal Court is a public agency within the meaning of KRS 61.805(2)(c), and any committee established, created, and controlled by it is a public agency pursuant to KRS 61.805(2)(g). See, e.g., Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that the presidential search committee created by action of the Board of Trustees of the University of Kentucky, a public agency created by statute, is itself a public agency) ; OAG 91-54 (holding that a committee created by the Mercer County Fiscal Court to consider proposals relating to planning and zoning is a public agency) ; 93-OMD-49 (holding that a three member grievance committee appointed by the Mayor of the City of Scottsville is a public agency) ; 95-OMD-124 (holding that an emergency medical services committee appointed by the Boyle County Judge/Executive is a public agency) ; and 98-OMD-96 (holding that a sign committee created by the City of Madisonville zoning administrator is a public agency) . 1 The fact that the committee is comprised of less than a quorum of the members of the Fiscal Court does not alter our conclusion. Nor does the fact that the committee is not empowered to take action but instead operates in an advisory capacity.
Inasmuch as the Finance and Budget Committee, standing alone, constitutes a public agency for purposes of the Open Meetings Act, we look not to the total composition of the Fiscal Court to determine the presence of a quorum of the Finance and Budget Committee, but to the total composition of the committee itself. The committee consists of three members of the Fiscal Court. A quorum of the committee is present, and a meeting occurs, when two of its members come together, to discuss public business, "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). Such meetings must be opened to the public.
As noted, our conclusion is not altered by the fact that the committee does not have authority to take action. By its express language KRS 61.805(2)(g) applies to advisory committees established, created, and controlled by a public agency. Consistent with this provision, KRS 61.810(1) states:
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 agency, shall be public meetings ...[.]
(Emphasis added.) In construing this provision, the Attorney General has observed, "We attached significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'" 98-OMD-94, p. 5. In 98-OMD-94, we recognized that since a quorum of the members of the agency was present and public business was discussed, the agency violated the Open Meetings Act by failing to notify the public about the meeting, and by excluding the public from the meeting. We believe that the reasoning of that decision extends to the present appeal. The Finance and Budget Committee of the Franklin County Fiscal Court plays a role in the formation of public policy. Its meetings are subject to the requirements of the Open Meetings Act notwithstanding the fact that it does not have authority to act. See, e.g., Presidential Search Committee , above, OAG 89-25; OAG 91-54; 98-OMD-96.
Established, created, and controlled by the Franklin County Fiscal Court, the Finance and Budget Committee is, as noted above, a public agency as defined at KRS 61.805(2)(g), and meetings of the committee at which a quorum of the members of the committee (as opposed to a quorum of the members of the Fiscal Court ) are present, and at which public business is discussed, are required to conform to the requirements of the Open Meetings Act. "Any other holding," the Kentucky Supreme Court has observed in a similar factual context, "would clearly thwart the intent of the law." University of Kentucky Presidential Search Committee at 886.
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 exception provided by KRS 61.810 or otherwise provided for by law shall be strictly construed." In interpreting 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 "this 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. Based upon these principles, the Franklin County Fiscal Court, and its committees, must proceed in discharging their duties under the Open Meetings Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.
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