00-OMD-171

00-OMD-171

September 7, 2000

In re: Jeffrey Haley/Paducah Board of Commissioners

Open Meetings Decision

        The question presented in this appeal is whether the Paducah Board of Commissioners violated the Open Meetings Act by taking action on an issue pertaining to the acceptance of a gift to the city at a secret meeting. For the reasons that follow, and upon the authorities cited, we conclude that the evidentiary record before us is insufficient to support the claimed violation.

        On August 15, 2000, Jeffrey Haley submitted an open meetings complaint to Mayor Albert Jones in which he alleged that sometime between January 28, 2000, and February 15, 2000, the board rejected an offer from Players Island Casino to the city to donate a waterfront barge facility for the Paducah Riverfront. He indicated that he had in his possession a letter from James W. Zumwalt, Paducah City Manager, to Players rejecting the offer, but complained that “[d]uring this period no public discussion, or council meeting was held concerning this matter.”  As a means of remedying this violation, he proposed that  “all business discussed during the period between January 28, 2000, and February 15, 2000, be re-introduced during the next possible City Commission meeting and that the public be allowed to voice their concerns at this time.”  Further, he proposed that the board “refrain from conducting secret meetings and that all open meetings laws of the Commonwealth of Kentucky be enforced.”  Finally, he requested that the city “publish this agreement at the earliest possible convenience to allow for public comment.”

        In a response dated August 25, 2000,¹ City Attorney W. David Denton denied that the board’s actions constituted a violation of the Open Meetings Act. He explained:

[T]he letter from City Manager James Zumwalt, dated February 15, 2000, that was enclosed with your complaint has been torn so that it is unclear to whom the letter was written. In fact, the letter was not written to Players Island Casino, as your complaint suggests, but was to Louis Igert, III, who is not, to the best of my knowledge, affiliated with Players Island Casino.

Prior to February 15, 2000, Mr. Igert contacted Mr. Zumwalt and informed him that Players Island Casino had two surplus barges that he believed would be sold soon. Mr. Igert suggested that the City may be able to convince Players to sell the barges to the City at a reduced rate or possibly give it to the City for its use at the Paducah riverfront. Obviously, this proposal was purely tentative giving the fact that Mr. Igert was speculating as to whether Players would sell them to the City, much less give them away.

As is always the case, City Manager Zumwalt has the final say as to whether an item should be placed on the Board of Commissioners’ agenda, via his signature at the bottom of each Agenda Action Form. Obviously, if no action is necessary from the Commission, it is not necessary to place the item on the Board’s agenda. With respect to this issue, Mr. Zumwalt had the authority and/or duty, pursuant to ordinance, to determine the acceptability of the possible gift from Players Island Casino. . . .

Mr. Zumwalt was of the opinion that the City would not be interested in acquiring a barge at that time and therefore did not believe that further action, such as contacting Players Island Casino and if Players was interested, placing it on the agenda, would be necessary. Nevertheless, he contacted the City Commissioners individually and asked their opinions as to whether he should pursue the possibility. They did not. The February 15, 2000 letter was written soon thereafter.

Mr. Zumwalt’s actions in speaking to the Commissioners individually do not, in our opinion, constitute a meeting of a quorum of the members which must be open to the public, pursuant to KRS 61.810(1). However, although your letter does not specifically identify which section of the open meetings law you believe was violated, I will assume for purposes of this response that you are alleging a violation of KRS 61.810(2) which states that

[a]ny 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. (emphasis added).

KRS 61.810(2).

As stated previously, the acceptability of a gift is absolutely within the discretion of the City Manager, pursuant to ordinance. Mr. Zumwalt’s actions in contacting the commissioners to ask them if they wanted him to pursue the possibility with Players was not “public business” that is required to be discussed at a public meeting pursuant to KRS 61.810(1). As such, the individual discussions were not “held for the purpose of avoiding the requirements of” the open meetings law.

Furthermore, because the City Manager has the final say as to what is to be placed on the Board of Commissioners’ agenda, contacting the commissioners to verify that they do not want him to pursue an idea, which could ultimately be on the agenda, is again, not “public business” that is required to be discussed at a public meeting pursuant to KRS 61.810(1). Again, the individual discussions were not “held for the purpose of avoiding the requirements of” the open meetings law.

Mr. Denton provided Mr. Haley with a copy of Paducah Code of Ordinance Sec. 2-53, defining the scope of the city manager’s authority. In closing, Mr. Denton expressed the view that the Open Meetings Act is not intended to “prevent the City Manager from having individual discussions with the City’s elected commissioners as to how they want him to do his job, i.e., pursuing ideas, possibilities, etc.”  Because the Paducah Board of Commissioners denied that a violation had occurred, the board refused to implement the proposed remedial measures.

        Subject to a strong cautionary note, we agree. As Mr. Denton correctly notes, resolution of this appeal turns on an interpretation of KRS 61.810(2), prohibiting a series of less than quorum meetings where the members attending one or more of the meetings collectively constitute a quorum, and the meetings are held for the purpose of avoiding the requirements of the Open Meetings Act. In a recent decision, the Attorney General analyzed this provision in depth, observing:

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. . . . 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.”

00-OMD-63, p. 5.

        More importantly, Kentucky’s Supreme Court has examined the purposes underlying KRS 61.810(2), and concluded:

        For a meeting to take place within the meaning of the act, pubic business must be discussed or action must be taken by the agency. 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 board has the option to take action. Taking action is defined by the Act as “a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body.”  KRS § 61.805(3). The Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meeting requirements of the Act. KRS § 61.810(2).

Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998). In Yeoman, the Supreme Court held that although a quorum of the members of the state Health Policy Board were present at a national health care conference, the appellant’s claim of an open meetings violation was devoid of merit since “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 . . . .”  Id.

        Nor can a claim of a violation be sustained when a number less than a quorum, collectively constituting a quorum, meet in a series of meetings, if public business is not discussed or action taken, and the meetings are not held for the purpose of avoiding the open meetings requirements. Public business does not involve, as the Yeoman court observed, any discussion between public officials, but instead involves a “discussion of the various alternatives to a given issue about which the [agency] has the option to take action.”  Yeoman at 474. Mr. Denton asserts that the decision to accept or reject a gift rests with the city manager. In support, he cites Paducah Code of Ordinances Sec. 2-93(a)(9) which provides that the duties of the city manager shall include:

Determining the acceptability of all gifts for designated purposes other than operations or facilities now operated or owned by the city.

Inasmuch as discretion rested with the city manager to make the decision regarding the acquisition of the barge, his communications with the commissioners concerning whether to pursue the offer did not involve the discussion of public business. The board did not have the option to take action on the offer, and merely confirmed his rejection of the gift and decision not to place it on the agenda for an upcoming meeting. Because the subject discussed was not “public business,” as defined by the Court in Yeoman, the discussions could not have been “held for the purpose of avoiding the requirements” of the Open Meetings Act. The actions of the Paducah Board of Commissioners therefore cannot be deemed to constitute a violation of KRS 61.810(2), or any other provision of the Act.

        Having so determined, we believe that our decision must be accompanied by a strong cautionary note. By virtue of his office, and the plan of municipal government under which Paducah operates, Mr. Zumwalt has the option to take action on matters traditionally entrusted to the legislative body. Our decision therefore turns, in large part, on the fact that Paducah operates under a city manager plan of government which vests Mr. Zumwalt with broad powers. Nevertheless, we remind the Paducah Board of Commissioners that, pursuant to KRS 61.800, “the formation of public policy is public business and shall not be conducted in secret . . . .”  Bearing in mind that “the people insist on remaining informed so they may retain control over the instruments they have created,” 1974 HB 100, Preamble, we urge the board to avoid any discussions which arguably fall within the zone of conduct prohibited by KRS 61.810(2).

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.

Albert B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#501

Distributed to:

Jeffrey Haley

521 North 7th Street

Paducah, KY 42001

Albert Jones

Mayor, City of Paducah

300 South 5th Street

Paducah, KY 42002-2267

W. David Denton

Paducah City Attorney

Denton & Keuler

P.O. Box 929

Paducah, KY 42002