Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Monticello City Council violated the Open Meetings Act when a quorum of its members met at a local restaurant following conclusion of its July 10, 2000, regular meeting. For the reasons that follow, and based on the authorities cited, we find that because those present stated under oath that they did not discuss public business, no violation of the Open Meetings Act occurred.
On July 11, 2000, Melodie Phelps, News Editor for The Wayne County Outlook , submitted a written complaint to Mayor Kenneth Catron in which she alleged that four members of the six-member Monticello City Council gathered at a local restaurant, following the Council's regular meeting, in contravention of KRS 61.810(1). Ms. Phelps expressed the belief that "public business was discussed during this meeting," and complained that "the press and public were not duly notified of the meeting." As a means of remedying the alleged violation, she proposed that the City Council inform The Outlook "of all public business that was discussed at this meeting," and that "no meeting, at which public business is discussed and which involve a quorum of council members, be held in the future without media notification."
In response, the Monticello City Council provided The Outlook with four affidavits signed by the Council members who had gathered at the restaurant following the regular meeting. In the affidavits, the Council members acknowledged that after the meeting was adjourned, they went to the Cumberland Dairy for drinks and dinner. Each member stated under oath that at no time did the group discuss City business, that the group was assembled socially, and that the group was not aware that its informal gathering might constitute a violation of the Open Meetings Act.
Dissatisfied with this response, Ms. Phelps initiated an open meetings appeal on July 18, 2000, again expressing the belief that "public business was discussed during this meeting, since it occurred just after a session of city council." We cannot agree that this fact, standing alone, is dispositive of the factual controversy. Instead, we find that the Council members' statements, made under oath, must be accorded substantial weight, and that the evidence does not support The Outlook's allegation that the Open Meetings Act was violated.
KRS 61.810(1) provides:
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.
This provision implements the legislative statement of policy, codified at KRS 61.800, which declares that "the formation of public policy is public business and shall not be conducted in secret . . . ." Kentucky's General Assembly has thus demonstrated its commitment to "open government openly arrived at." 99-OMD-146, p. 4, citing Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N.J. Super. Ch. 1982)
In a recent decision, the Kentucky Supreme Court recognized that the Open Meetings Act "prohibits a quorum from discussing public business in private or meeting in numbers less than a quorum for the express purpose of avoiding the open meeting requirement of the Act." Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459,474 (1998). Nevertheless, the Court continued:
The mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act.
Id. The Supreme Court thus firmly established that even if a quorum of the members of the agency are present, "for a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency." Id. In the interest of absolute clarity, the Court opined:
Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the [agency] has the option to take action.
Id.
The Supreme Court's decision in Yeoman synthesizes some twenty-six years of open meetings decisions issued by the Kentucky Attorney General under a general grant of authority prior to 1992, and a specific grant of authority after 1992. 1 In 1978, for example, the Attorney General stated that a quorum of the members of a public agency may attend a professional or social event, such as a convention sponsored by an entity other than the agency itself, without triggering the requirements of the Open Meetings Act. OAG 78-634. Elaborating on this view, in 95-OMD-136 the Attorney General held that Kentucky law does not require "a conclusion that attendance of a quorum of the members of a public body at a convention or conference organized by someone other than the public agency constitutes a meeting of the public agency. " Nevertheless, this office admonished that agency members "attending such a convention or meeting are not authorized to take action affecting [the agency they represent] nor are they permitted to discuss matters directly affecting their [agency]." 95-OMD-136, p. 3.
Conversely, in a series of decisions also dating back to 1978 the Attorney General has recognized that even a casual gathering of a quorum of the members of a public agency triggers the requirements of the Open Meetings Act if public business is discussed or action is taken. OAG 78-411. Thus, in OAG 80-81 we stated that a city council violated the Act when a quorum of its members met before a regular meeting and decided among themselves how they would vote on a matter subsequently brought before the council at the meeting. Similarly, in OAG 83-102 we held that an agency "committee" comprised of a quorum of the agency's members, along with several others, could not discuss the agency's business in private, reasoning:
Under KRS 61.810 whenever a quorum of the members of any public agency meet and discuss any public business the meeting is a public meeting as defined in the Open Meetings Law, KRS 61.805 to 61.850. Even though the [agency] called itself a committee and added several other people to the "committee" it was required to comply with the Open Meetings Law.
OAG 83-102, p. 3, citing Courier-Journal v. University of Louisville, Ky. App., 596 S.W.2d 374 (1980). Finally, in 94-OMD-50 we held that a quorum of the members of a fiscal court violated the Open Meetings Act when they met in the magistrates' office to review matters involving the county. See also, 99-OMD-213.
Bearing in mind that a meeting takes place, within the meaning of the Act, only if a quorum is present and public business is discussed or action is taken, we find that the social gathering of the four members of the Monticello City Council at a local restaurant following the Council's July 10 meeting did not constitute a violation of the Open Meetings Act. The record is silent as to whether anyone overheard, or was privy to, their discussion. Although photographs were taken of the gathering, no one has come forward to attest to the content of their conversation. The Council members themselves, on the other hand, have stated under oath that no public business was discussed. Weighing a doubt against a certainty, we find no merit to The Wayne County Outlook's claim inasmuch as the gathering did not rise to the level of a meeting within the meaning of the Open Meetings Act. As noted, "the mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act." Yeoman at 474.
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 proceedings.
Footnotes
Footnotes
1 That grant of authority is codified at KRS 61.846(2).