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 Kenton County Fiscal Court violated the Open Meetings Act through activities it engaged in over a period of time extending from September 14, 1999, to December 6, 1999. For the reasons that follow, we find that the Kenton County Fiscal Court's activities constituted violations of the Act.
On December 16, 1999, Terry Whittaker submitted an open meetings complaint to Kenton County Judge/Executive Richard L. Murgatroyd in which she alleged that the Kenton County Fiscal Court had committed a number of open meetings violations. Those violations and the fiscal court's responses, prepared by Kenton County Attorney Garry L. Edmondson, are summarized below:
1. At a December 6, 1999, press conference, Judge Murgatroyd stated that he had conducted a series of meetings with each of the individual members of the fiscal court for the purpose of discussing "newly received information regarding the Elsmere jail site. " Judge Murgatroyd indicated that after these meetings the fiscal court "reached a unanimous decision."
Kenton County Attorney Edmondson responded:
Relying on OAG 80-426, Mr. Edmondson maintained that KRS 61.810 does not prohibit an elected official from discussing an issue with another elected official "outside of a public meeting, they merely may not make a collective decision without complying with the law."
2. At a November 20, 1999, fiscal court meeting held in Elsmere, signs were erected at the entrance to the meeting room directing attendees to sign in before entering, and a security force was present to ensure that attendees complied with the requirement. Ms. Whittaker noted that the Open Meetings Act prohibits public agencies from requiring persons in attendance to identify themselves.
On behalf of the fiscal court, Mr. Edmondson acknowledged that there were two lists, one for attendees who wished to speak, and the other "to determine how many people were present, to see where they lived and to keep a record of the sentiment." It was his belief that no one was refused admission because they did not sign in.
3. At its October 5, 1999, meeting, the fiscal court appointed individuals to the Kenton County Jail Commission. During the next two months, the commission conducted at least two meetings. Neither the fiscal court nor the Jail Commission established a schedule of regular meetings for the commission, and no notice was given of these meetings. Because the commission is a public agency, Ms. Whittaker argued, it must hold open, public meetings and adopt a schedule of regular meetings.
In response, Mr. Edmondson advised that there was only one commission meeting, "and it was advertised in the paper and even covered by the press."
4. At the September 14, 1999, fiscal court meeting, Judge/Executive Murgatroyd:
Ms. Whittaker noted that the Open Meetings Act prohibits public agencies from taking action in closed session.
Mr. Edmondson responded that Judge Murgatroyd's comments were confined to his own decision, and he did not know how the other members of the fiscal court would vote until they actually voted.
Dissatisfied with these responses, Ms. Whittaker initiated this open meetings appeal. Based on our review of her complaint and the fiscal court's responses, we find that the record is sufficient to support her claim that the Kenton County Fiscal Court violated the Open Meetings Act on two of the four occasions identified in her appeal. An analysis of each of the alleged violations follows.
1. Series of less than quorum meetings held prior to December 6 press conference
Ms. Whittaker alleges, and Mr. Edmondson does not refute, that at his December 6 press conference, Judge Murgatroyd commented that he had conducted separate meetings with each of the members of the fiscal court to discuss "newly received information regarding the Elsmere jail site. " The fiscal court defends these meetings on the basis of OAG 80-246, arguing that the opinion recognizes the right of elected officials to discuss public business outside of a public forum so long as no collective decision is reached. Mr. Edmondson opines that it was not Judge Murgatroyd's intention to avoid the requirements of the Open Meetings Act. 1
We find that KRS 61.810(2), enacted in 1992, places restrictions on the rights of public officials to engage in discussions of the public's business in any forum other than a public forum. KRS 61.810(2) specifically provides:
(2) Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
Acknowledging the difficulties associated with determining the subjective intent of the participants in a series of less than quorum meetings, this office concluded, in 94-OMD-106, that the fiscal court violated the Open Meetings Act when its members met individually or in small groups to discuss public business. At page 3 of that decision, we reasoned that KRS 61.810(2) "represented an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act. " To the extent that OAG 80-426 is inconsistent with this view, it has been statutorily superceded and is hereby modified.
While we again acknowledge our inability to determine the subjective intent of the participants, it is apparent that the matters discussed in this series of less than quorum meetings, namely newly received information concerning the Elsmere jail site, influenced their ultimate decision in some manner, and were therefore the public's business. It is also apparent that the public was deprived of an opportunity to observe their discussion of these matters in contravention of the principle, codified at KRS 61.800, that "the formation of public policy is public business and shall not be conducted in secret. . . ." We are not persuaded that this series of less than quorum meetings at which public business was discussed did not violate the Open Meetings Act even if no collective decision was reached. KRS 61.810(2) prohibits all less than quorum meetings where the members attending one or more of the meetings collectively constitute at least a quorum, and not just those which culminate in a collective decision.
This position comports with the views expressed by the drafters of the Open Meetings Act in the preamble to the statute:
The people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created.
1974 HB 100, Preamble. Although there is no empirical means by which this office can determine the members' intentions, we find that the fiscal court's actions otherwise fall within the zone of prohibited conduct described in KRS 61.810(2).
2. Attendance sheets at November 20 meeting
Ms. Whittaker's second complaint focuses on the presence of a sign-in sheet at the entrance to the fiscal court's meeting room in Elsmere, accompanied by a posted notice advising attendees to sign in before entering, and security men who enforced the requirement. The fiscal court responds that no one was denied admittance for refusing to sign in, and the sheets were placed at the entrance for the purpose of determining how many people were present, where they lived, and their sentiments. Whatever the purpose of the sign-in sheets, we find that their use constituted a violation of KRS 61.840.
KRS 61.840 provides:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
The actions of the Kenton County Fiscal Court clearly abridged the rights of persons attending the November 30 meeting to do so without identifying themselves. Mr. Edmondson does not assert that persons attending the meeting could elect not to sign in, or that the posted notices did not require persons attending the meeting to sign in. He merely expresses the belief that no one was denied admittance because they refused to sign in. This belief does not mitigate the violation.
In 98-OMD-44, this office condemned the practice of requiring attendees to indicate their city of residence for purposes of providing preferential seating to those attendees who resided in the area affected by the subject matter of the meeting. Although the attendees were not required to identify themselves by name or address, we nevertheless held that the agency's practice contravened KRS 61.840 "by impermissibly requiring persons who attend its meetings to provide identifying information." 98-OMD-44, p.4. There, the Attorney General noted that although a person's city of residence, standing alone, reveals little about the person, it is, nevertheless, a personal identifier proscribed by KRS 61.840. In the appeal before us, the fiscal court required attendees to furnish their names and addresses as an apparent, if not an actual, precondition to attending the meeting. We find that this practice constitutes a clear violation of KRS 61.840, and should be discontinued.
3. Failure to give proper notice of Kenton County Jail Commission's meeting or meetings subsequent to its October 5 creation
Ms. Whittaker next complains about the failure of the Kenton County Fiscal Court to give proper notice of its Jail Commission's public meetings. She explains that the commission was created by the fiscal court on October 5, and subsequently held at least two meetings without benefit of public notice. The Kenton County Fiscal Court responds that the commission conducted only one meeting between October 5 and the date of Ms. Whittaker's complaint, that it was advertised in the newspaper, and that it received press coverage. Mr. Edmondson does not, however, indicate whether the commission adopted a schedule of regular meetings and made that schedule available to the public, thus obviating the need for special meeting notice pursuant to KRS 61.823, or whether the meeting was a special meeting, and proper notice was given in full compliance with KRS 61.823. Given the paucity of information available, we cannot determine if a violation occurred. We do, however, note the apparent failure of the fiscal court and its commission discharge to their duties under KRS 61.820, or alternatively, KRS 61.823.
In 94-OMD-50, the Attorney General recognized:
There are only two kinds of meetings--regular meetings and special meetings.
Regular meetings are held at specified times and places which are convenient to the public. Public agencies must provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that particular agency. [KRS 61.820.]
Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)(a), there are also posting requirements (KRS 61.823(4)(b)). These requirements must be met each time for each called special meeting.
94-OMD-50, p.4. With respect to these requirements, the Kentucky Supreme Court has observed, "The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," and 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 v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing
W. W. Scripps Co. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990).
The Kenton County Fiscal Court has not produced a schedule of regular meetings adopted by its Jail Commission, and available to the public, nor has it demonstrated that the commission fully complied with the requirements of KRS 61.623 before conducting a special meeting. As noted above, the meeting which Mr. Edmondson acknowledges was held during the period in question was either a regular meeting or a special meeting. Because no schedule of regular commission meetings apparently exists, we must assume that it was a special meeting. No proof has been presented that written notice, consisting of the date, time, and place of the meeting, and an agenda of items to be discussed, was sent to the commission members and media organizations which had requested notification at least 24 hours before the meeting. No proof has been presented that this written notice was posted in a conspicuous place in the building where the special meeting took place, and in the building which houses the commission's headquarters, at least 24 hours before the meeting. If the commission meeting was a special meeting, and if the commission did not strictly comply with these requirements, its actions constituted a violation of KRS 61.823.
4. Comments made by County Judge Murgatroyd at the September 14 fiscal court meeting
Ms. Whittaker's final complaint focuses on an alleged impropriety concerning final action taken in a closed session at the September 14 meeting. She bases her complaint on comments made by Judge Murgatroyd in open session. The Kenton County Fiscal Court denies that any violation occurred, asserting that Judge Murgatroyd's comments were confined to his own position, and not the positions of the other members of the fiscal court. In this case, we find that the record is insufficient to support Ms. Whittaker's claim that an open meetings violation occurred. She does not describe with sufficient specificity the nature of the alleged final action, or the circumstances under which the alleged violation occurred. On the facts presented, we cannot determine if the Kenton County Fiscal Court violated the Open Meetings Act at its September 14 meeting.
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.
Footnotes
Footnotes
1 Whether a collective decision was reached as a result of this series of less than quorum meetings is an issue of fact which we are unable to resolve. We do, however, note that in his December 6 press release, Judge Murgatroyd stated that we had "spoken with each of the Commissioners individually concerning this issue and collectively we agree that this is the appropriate action to take at this time." (Emphasis added.)