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 Executive Director Search Committee of the Telecommunications Board of Northern Kentucky violated the Open Meetings Act by failing to comply with the requirements of the Act in a series of special meetings that preceded the February 29 special meeting of TBNK's Board of Directors at which John Hingsbergen was appointed executive director. For the reasons set forth below, and upon the authorities cited, we conclude that the committee's failure to comply with KRS 61.823 and KRS 61.835 constituted violations of the Open Meetings Act.
On March 13, 2000, Steven C. Schletker submitted an open meetings complaint to David Hatter, chairman of TBNK. In his complaint, Mr. Schletker asserted that the Executive Director Search Committee created by TBNK was a public agency as defined in KRS 61.805(2)(g), and that because the committee had failed to establish a schedule of regular meetings, all of its meetings must be characterized as special meetings. As such, Mr. Schletker maintained, these meetings were subject to the notice requirements codified at KRS 61.823(3) and (4), as well as the general requirement, codified at KRS 61.835 and applicable to "every meeting of any . . . public agency, " that minutes of actions taken be recorded and open to public inspection.
It was Mr. Schletker's position that the committee violated KRS 61.823(4)(a) by failing to provide written notice, consisting of the date, time, and place of its special meetings, along with the agenda for those meetings, to every member of TBNK and to each media organization that had filed a written request to receive notice of special meetings. Further, it was his position that the committee violated KRS 61.823(4)(b) by failing to post written notice in a conspicuous place in the building where the meetings took place, and in the building which houses the headquarters of the agency. Finally, it was his position that the committee violated KRS 61.835 by failing to record minutes of these special meetings. 1 As a means of remedying these violations, Mr. Schletker proposed that actions taken by the committee, and TBNK in full, be declared void, and that TBNK "restart the process by which it filled the Executive Director's vacancy" in a manner consistent with the requirements found at KRS 61.823 and 61.835.
On March 16, 2000, TBNK, through its chairman, Mr. Hatter, issued a written response to Mr. Schletker's complaint, rejecting his proposal that it implement these remedial measures. Mr. Hatter explained:
Even if it were assumed that the Executive Director screening committee, which was comprised of three (3) directors of TBNK, constituted a "public agency" under the Open Meetings Act, failed to provide the written notice pursuant to KRS 61.823 and to conduct open meetings, the committee could not take nor was it authorized to take any "action", as that term is defined in KRS 61.805(3). It could not appoint or hire or commit TBNK to appoint or hire the new Executive Director. These directors' responsibilities were simply to (i) advertise the then vacant position, (ii) collect/gather resumes, (iii) filter the collected/gathered resumes, and (iv) provide the Board of Directors with the best qualified candidates. Further, if it were assumed that the screening committee were subject to the Open Meetings Act, the three (3) or four (4) times that they met, such meetings could have been "closed meetings" under KRS 61.810(1)(f), as they would have been having discussions "which might lead to the appointment . . . of an individual employee. . . ." In this regard, the directors were principally engaged in the review of resumes of candidates, which had been submitted in confidence by the candidates, and talking with such candidates. These actions simply could not have occurred in any open meetings for the candidates' protection.
We further suggest that the meetings of the three (3) directors fall within KRS 61.810(2) which permits "individual members [to meet] where the purpose of the discussions is to education . . . themselves . . ." as to qualified candidates. See KY OAG, 96-OMD-261. 2
Mr. Hatter noted that the selection, appointment, and hiring process "was undertaken by the TBNK Board of Directors" which took formal action on this matter at its February 29, 2000, special meeting.
With respect to Mr. Schletker's proposed remedy that any actions taken be declared void, the selection process restarted, and the procedural requirements observed, Mr. Hatter advised:
The Board of Directors of TBNK determined at its regularly scheduled meeting last night (March 15) that your request is not well based, as the appointment and hiring was accomplished by the full, ten (10) member Board of Directors at the February 16 regularly scheduled meeting and the February 29 special meeting.
Since these meetings were conducted in full compliance with the requirements of the Open Meetings Act, Mr. Hatter maintained that there was no need to implement the proposed remedial measures. Shortly after he received TBNK's response, Mr. Schletker initiated this appeal.
In a supplemental response directed to this office, TBNK counsel William C. Gullett argued that even if it were determined that the committee is a public agency for open meetings purposes, and that it failed to comply with KRS 61.823 and 61.835 in conducting its meetings, the Attorney General does not have authority to declare or render invalid any public agency action taken at, or as a result of, these illegal meetings. He reiterated that "the only formal actions taken with respect to the appointment and employment of the Executive Director were taken by the Board of Directors at duly convened meetings. . . ." Accordingly, he asserted, no violation had occurred that would permit a court of competent jurisdiction to void these actions, and the Attorney General lacks statutory authority to do so. We agree with Mr. Gullett in his analysis of the Attorney General's limited role in adjudicating open meetings disputes, and defer to the courts on the issue of invalidation of agency action. However, pursuant to KRS 61.846(2), we find that the Executive Director Search Committee of the Telecommunications Board of Northern Kentucky is a public agency for purposes of the Open Meetings Act, and that its failure to comply with KRS 61.823 and KRS 61.835 in the meetings it conducted prior to Mr. Hingsbergen's February 29 appointment constituted violations of the Act.
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[.]
TBNK is a public agency formed under the Interlocal Cooperation Act by Kenton and Boone counties, and cities located therein, 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) ; 99-OMD-77 (holding that a finance and budget committee created by Franklin County Fiscal Court as an advisory body is a public agency as defined in KRS 61.805(2)(g)). The fact that the committee was not empowered to take action, but instead operated in an advisory capacity, does not alter our conclusion.
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; see also, 99-OMD-77; 99-OMD-117. 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, notwithstanding the fact that no action was taken. We believe that the reasoning of that decision extends to the present appeal. The Executive Director Search Committee played a role in the formation of public policy. Its meetings were subject to the requirements of the Open Meetings Act notwithstanding the fact that it did not have authority to act. See, for example, Presidential Search Committee , above, OAG 89-25; OAG 91-54; 98-OMD-96.
Fundamental to an analysis of the propriety of a public agency's conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is 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 interpreting this provision, Kentucky's courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," E. W. Scripps Co. v. City of Maysville, Ky.App., 750 S.W.2d 450 (1990) cited in Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), and that the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions." Id. at 923.
As noted, KRS 61.823 establishes requirements for conducting a special meeting 3 which include the following:
(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
(4) (a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. . . .
(b) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
Neither Chairman Hatter nor Mr. Gullett maintains that proper written notice was delivered or posted as required by KRS 61.823. These omissions constituted violations of the Open Meetings Act.
By the same token, we find that the search committee's failure to comply with the requirements of KRS 61.835 constituted a violation of the Open Meetings Act. That statute provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
It is the opinion of this office that the search committee was obligated to record minutes of all meetings of a quorum of its members at which public business was discussed. See, 98-OMD-94; 99-OMD-77; 99-OMD-117. The requirement that the agency record minutes of its meetings is triggered regardless of whether action is taken at the meeting. At a minimum, the minutes should reflect that the meeting was convened, the minutes of the last meeting approved, the formalities for going into closed session were observed, 4 and the meeting was adjourned. 99-OMD-166, p. 5. In the interest of maximizing notice of public agency meetings, and what transpired at those meetings, the search committee should have recorded minutes of its meetings, and its failure to do so constituted a violation of the Open Meetings Act.
As noted, the Attorney General is not empowered to invalidate or void actions taken by public agencies in the course, or as a consequence, of a meeting which does not conform to the requirements of the Open Meetings Act. Nor does it appear to us that Mr. Schletker expected us to do so. Our review under KRS 61.846(2) is confined to a determination whether the Executive Director Search Committee violated the provisions of KRS 61.805 to 61.850. Based on our review of the record before us, we conclude that its acts and omissions were violative of both KRS 61.823 and 61.835.
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 In an earlier open records appeal, Mr. Schletker ascertained that no minutes of committee meetings were recorded when he was denied access to them on the basis that "no minutes exist with respect to the search committee as the ultimate hiring decision is by the full Board." (TBNK's March 8, 2000, response to Mr. Schletker's March 3, 200, open records request).
2 We find this argument unpersuasive. The meetings at issue in this appeal cannot be characterized as a series of less than quorum meetings, within the meaning of KRS 61.810(2). They were, instead, meetings of a quorum of the members of a public agency, namely the Executive Director Search Committee of TBNK, at which public business was discussed. KRS 61.810(2) has no bearing on the issues before us.
3 Mr. Schletker correctly characterizes all of the committee's meetings as special meetings insofar as it never adopted a schedule of regular meetings. As this office has so often observed, "there are only two kinds of meetings - regular meetings and special meetings." 94-OMD-50, p. 3. Any meeting that is not a regular meeting is a special meeting, and is subject to the notice requirements codified at KRS 61.823.
4 This assumes that closed sessions were authorized by KRS 61.810(1)(a) through (l). Clearly, the committee could have properly relied on KRS 61.810(1)(f) to conduct closed session discussions of the qualifications of individual applicants. According to Mr. Hatter, however, the committee was also charged with the duty to "advertise the then vacant position, [and] collect/gather resumes. . . ." Discussions pertaining to the process by which the most qualified candidates were selected, as opposed to discussions pertaining to specific applicants and their individual qualifications for the position, are in the nature of general personnel matters, and KRS 61.810(1)(f) prohibits closed session discussion of such matters.