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 LaGrange City Council violated the Open Meetings Act by excluding the public from a meeting of a quorum of its members conducted prior to its April 3, 2000, regular meeting. For the reasons that follow, we find that the council's actions constituted more than a mere "technical violation" of the Act, and that its subsequent remedial actions did not entirely ameliorate that violation.
On April 5, 2000, Courier-Journal staff writer Leslie Ellis submitted a written complaint to Nancy Steele, Mayor of the City of LaGrange, in which she alleged that the city council violated KRS 61.810 when it held "a closed-door meeting of a quorum of the . . . Council prior to the regular council meeting at 6:30 p.m." Ms. Ellis complained that in the course of the regular meeting, council member Lucy Ricketts reported that "the city's $ 3 million League of Cities' loan was discussed during the session held prior to the regular council meeting. " As a means of remedying this violation, Ms. Ellis proposed "that all future discussions of the League of Cities' loan be conducted in public, and that the newspaper be notified of any schedule changes involving council meetings."
In a response dated April 11, 2000, Mayor Steele denied any violation of the Open Meetings Act. She reasoned:
We disagree with the characterization of the discussion that took place before the council meeting on April 3, 2000, as a "special meeting. " The council members and myself were waiting in an adjoining room until the Fiscal Courtroom was available. While we were waiting, an informal discussion took place with Garrett Drakeford of the Kentucky League of Cities to answer some questions some of the council members had concerning the loan the city had with the League of Cities. At no time was this informal discussion intended to be a "special meeting, " therefore prior notice could not have been given. It just happened while we were waiting for the Fiscal Courtroom to become available. In addition, in the council meeting, the substance of these informal discussions and the answers to these questions by the council members were presented.
In closing, Mayor Steele noted that the City of LaGrange "has always notified the news media of any special meetings where a quorum will be present according to the applicable statutes . . . [and] will continue to do so." This appeal followed.
In a supplemental response directed to this office, LaGrange City Attorney Fonda V. McClellan elaborated on Mayor Steele's remarks.
Since this discussion was a spur of the moment event, and was not planned in advance, there was no way the city could have complied with the written notice and posting requirements of the statutes for a special meeting. In addition, since the council did not view this discussion as a meeting, they did not intend to go into a closed session.
In hindsight, the door would have been left open and the discussions postponed until the scheduled meeting had been called to order. However, no decision was made and the substance of the discussions was presented to the public and press in the council meeting. While there may have been a technical violation, no action was taken and everyone was informed in the council meeting of what was said.
Ms. McClellan reiterated that the city "will continue to abide by the notice requirements of the Open Meetings Law," concluding that she "[did] not know what more [the city could] do."
It is the opinion of this office that the closed door meeting conducted prior to the regularly scheduled meeting of the LaGrange City Council constituted a violation of the Open Meeting Act, and that the violation was not merely a "technical" one. The Act itself does not recognize a class of violations of lesser gravity than the remaining class of violations, and therefore capable of being dismissed as merely "technical." The actions that took place at the city council's April 3, 2000, meeting were contrary to the basic policy of the Open Meetings Act, codified at KRS 61.800, "that the formation of public policy is public business and shall not be conducted in secret. . . ."
To promote this policy, the General Assembly has mandated that:
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, open to the public at all times. . . .
KRS 61.810(1). "The failure to comply with the strict letter of the law in conducting meetings of a public agency, " the Kentucky Supreme Court has admonished, "violates the public good."
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing
E. W. Scripps Company v. Louisville, Ky.App., 790 S.W.2d 450 (1990).
KRS 61.805(1) defines the term "meeting" as:
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 [.]
In construing this provision, the Attorney General has observed:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. Failure to follow all of these provisions constitutes a violation of the Open Meetings Act.
92-OMD-1840, p. 3. Thus, the definition of a special meeting is "broader in scope and coverage than what [the city council] contemplates. . . ." 95-OMD-64, p. 2.
Even though it occurred on the spur of the moment, the closed door discussion of a quorum of the members of the LaGrange City Council held prior to its regularly scheduled meeting fell within the definition of a meeting set forth at KRS 61.805(1). Therefore, we are bound to hold that the council violated KRS 61.823, because no notice was given of the meeting, KRS 61.810, because no statutory authority existed for excluding the public, and KRS 61.815, because no attempt was made to comply with the requirements for conducting a closed session if such authority existed. Accordingly, the city council's original response to Ms. Ellis's open meetings complaint in which it denied that a violation had occurred was erroneous. The supplemental response submitted on behalf of the city council, in which the council belatedly acknowledged that the meeting should not have occurred, was also erroneous in its attempt to characterize the violation as a technical one, mitigated by the fact that "no decision was made and the substance of the discussions was presented to the public and press in the council meeting. " For these reasons, we conclude that the LaGrange City Council violated 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.