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 Elsmere City Council violated the Open Meetings Act by conducting "a meeting, meetings or series of less than quorum meetings for the purpose of discussing public business outside of the requirements of the . . . Act and authoring a letter that was distributed to the media regarding their decision" in the period between October 12, 1999, and October 18, 1999. For the reasons that follow, we find that the evidentiary record is insufficient to support the allegation that a meeting or meetings occurred, and that even if the evidentiary record supported this allegation, the record does not support the claim that a single meeting was conducted where a quorum was present, or that a series of less than quorum meetings was conducted where the members attending one or more of the meetings collectively constituted at least a quorum. We therefore conclude that the Elsmere City Council did not violate the Open Meetings Act.
On September 25, 2000, Terry Whittaker submitted a written complaint to Mayor Bill Bradford setting forth the following facts:
1) In an October 21, 1999 issue of the Erlanger Recorder newspaper, . . ., a letter to the editor authored by Mayor Bill Bradford, Councilman Ralph Fields, Councilman Don Koop and Councilwoman Betty Wehner was printed wherein the authors correspond regarding a motion that was discussed and tabled at the October 12, 1999 regular City Council meeting.
2) On June 28, 2000 I made an open records request to the City for copies of the above referenced correspondence and was informed the document does not exist . . . . The City Attorney and I discussed publicly at a regular Elsmere City Council meeting on July 11, 2000 that the document does exist but has not been retained by the City. Two media agencies have provided me copies of the "For Immediate Release" correspondence that is dated October 18, 1999 . . . .
3) The "For Immediate Release" documents state at paragraph 4, "Her proposal was tabled and when it comes back on the floor will certainly not have our vote."
Based on these facts, and an admission by the city that no meeting of the city council occurred between October 12, 1999, and October 18, 1999, Ms. Whittaker complained:
Between October 12, 1999, and October 18, 1999, Mayor Bill Bradford, Councilman Ralph Fields, Councilman Don Koop and Councilwoman Betty Wehner held a meeting, meetings or series of less than quorum meetings for the purpose of discussing public business outside of the requirements of the Open Meetings Act and authoring a letter that was distributed to the media regarding their decision should the tabled motion be brought to the floor.
As a means of remedying this alleged violation, Ms. Whittaker proposed that the council "discuss at their next meeting, in an open and public session, the matters discussed at the improper meeting, meetings or less than quorum meetings, and introduce the press release in its entirety as a matter of public record." In addition, she proposed that at the same meeting, "the authors of the press release publicly apologize for the illegal meeting(s) and affirm their intentions to cease conducting meetings which are outside the scope of the exceptions to the Open Meetings Act . . . ."
On appeal, Ms. Whittaker complains not only of the alleged illegal meeting or meetings, but also of the city's apparent failure to respond to her open meetings complaint. She states:
I personally visited the city building on September 28, 2000, at about 4:00 p.m. and September 29, 2000, at about 4:00 p.m. and was informed by a clerk, Jennifer, that no response regarding my Open Meetings complaint had been left for delivery to me. Additionally, no response was delivered to my postal box as of 12:00 p.m. [on October 1, 2000].
She asks that the Attorney General review "this situation" to determine if a violation of the Open Meetings Act has occurred.
In a response directed to this office following commencement of Ms. Whittaker's appeal, Elsmere city attorney Robert W. Carran denied the allegations contained in the complaint. He provided the following narrative of events that culminated in publication of the letter to the editor in The Erlanger Recorder:
In the fall of 1999, the Kenton County Fiscal Court announced that it had narrowed its potential sites for the construction of a new county jail, and was now focusing on property located in Elsmere. Immediately after this announcement, several groups of concerned citizens were formed to oppose the construction of a jail in Elsmere. Additionally, I was instructed by the Elsmere City Council to institute litigation, which I did.
Sometime toward the end of 1999, at a regularly scheduled Elsmere city meeting, an Elsmere council member moved for the passage of an ordinance which would require all Elsmere homes and businesses to have a firearm located in the building at all times. The motion was accompanied by a speech made by the council member wherein the purpose of the ordinance was outlined as a measure designed for protection due to the increased danger posed by the jail. The motion was tabled, and nothing further occurred regarding this matter during the rest of the city meeting. However, the motion received a great deal of attention in all of the media of Northern Kentucky and Greater Cincinnati. A few days after the meeting a document captioned
"For immediate release:
October 18, 1999
Letter to the Editor"
Was brought to the Elsmere City Building and the Elsmere fax machine was used to send the document to the local newspapers. I attach a copy of the document, marked as Exhibit A. As can be seen, the document was signed on the third page thereof by three council members and the city mayor. Elsmere's council is composed of six members. Elsmere is a Fourth Class City, and the mayor is not considered to be a council member, and only votes to break a tie. No copy of the document has been maintained by the city.
In response to Ms. Whittaker's allegation that the city failed to issue a written response to her complaint, Mr. Carran explained that a response was prepared, and available for Ms. Whittaker to pick up immediately following the council's September 26, 2000, meeting. Mr. Carran stated that he read the full text of the city's September 26 response at the meeting, which Ms. Whittaker attended, then delivered the original to City Clerk Nancy Bowman. He questioned why Ms. Whittaker "chose to not obtain from Nancy Bowman the letter addressed to her and delivered to the city clerk so that it could be obtained by her at the city meeting "when it was she who demanded a response at the council's next meeting, i.e., the September 26 meeting." Mr. Carran attached a copy of the city's September 26 response.
It is the opinion of this office that the city complied, in all material respects, with the procedural requirements of the Open Meetings Act in responding to Ms. Whittaker's complaint, and that the actions of the council members and the mayor relative to the letter to the editor did not constitute a violation of the Act, there being no proof in the record that a meeting or series of meetings occurred, or that if a meeting or meetings occurred, a quorum of the council members were present at a single meeting or collectively at a series of less than quorum meetings.
KRS 61.805(1) defines the term "meeting" as "all gatherings of every kind, 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. " Ms. Whittaker speculates that a meeting or meetings occurred in the period between October 12, 1999, and October 18, 1999, at which discussions were conducted concerning the proposed ordinance, and the letter to the editor was drafted. Nevertheless, she presents no proof that such a meeting or meetings occurred. In the absence of any proof, we cannot assume that a meeting or meetings took place. See 96-OMD-35 (record did not support allegation that meeting of Medical Center Commission of Jefferson County took place). In 00-OMD-142, this office addressed a similar allegation that a meeting must have been held by a majority of the Harrodsburg City Commission members for the purpose of calling a special meeting, and preparing a special meeting notice to which three of the five members' signatures were affixed. At footnote 2, page 5, of that decision, we observed:
We find no merit to [complainant's] recursive argument that a special meeting or meetings must have been held for the purpose of calling the June 22 special meeting. No evidence is presented that such meetings took place, and the members of the Commission flatly deny the allegation. We can easily envision a situation where a member of the Commission perceived the need for a special meeting on an issue of pressing concern, and enlisted the support of enough members of the Commission to constitute a majority who then signed off on the meeting notice. No "meeting" of these members need occur.
By the same token, in the appeal before us we can envision a situation where a council member formulated his own views on the proposed ordinance, authored a letter expressing those views, and circulated the letter to other council members for their signatures, all without holding a "gathering of [any] kind." KRS 61.805(1).
However, even if we assume that a meeting or series of meetings took place to discuss the ordinance and draft the letter, the record does not support Ms. Whittaker's complaint that a violation of the Open Meetings Act occurred. KRS 61.810(1) states 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." Application of the requirements of the Act is thus conditioned upon proof that a meeting occurred, that the meeting was attended by a quorum of the members of the public agency, and that public business was discussed or action was taken. Only three council members and the mayor are alleged to have participated in a single meeting or series of meetings, and this number does not constitute a quorum. The Elsmere City Council is composed of six members, and, as Mr. Carran correctly notes, four council members must be present for a quorum to exist. KRS 83A.060(6) ("Unless otherwise provided by statute, a majority of a legislative body shall constitute a quorum and a vote of a majority of a quorum shall be sufficient to take action"). 4 McQuillin, Mun. Corp. (3rd Ed.) § 1327. In the absence of a quorum at a single meeting, or collectively at a series of meetings, "the meeting in question was not a public meeting under the Open Meetings Act. " 93-OMD-63, p. 5; 93-OMD-64.
In a supplemental reply dated October 6, 2000, Ms. Whittaker argues that "3 members plus the mayor would constitute a sufficient number in order to take action." Alternatively, she notes that Al Wermeling, city council member, "has not been in attendance at council meetings for quite some time, . . . resigned in early 2000 . . . [was] suffering from senile dementia and . . . placed in convalescent care in late 1999," thus reducing the total composition of the council to five, and by extension, the number of council members necessary for a quorum. We do not find these arguments persuasive.
In construing various provisions of Chapter 83A of the Kentucky Revised Statutes, this office has stated that a city council of a city of a fourth class that is composed of six council members and a mayor cannot transact business when there are three members of the council present plus the mayor. Thus, in OAG 81-132, p. 1, 2, we observed:
KRS 83A.060 (6) provides that unless otherwise provided by statute, a majority of the members of a legislative body shall constitute a quorum and a vote by a majority of a quorum shall be sufficient to take action on a matter before the body. Pursuant to this statute a majority of the members of the city council of a fourth class would be four (4) members. The mayor, of course, is not a member of a legislative body. See KRS 83A.060 (5).
. . .
The Mayor is not a member of the council as we have mentioned above though he may vote when it is necessary to break a tie vote on any measure before the council. See KRS 83A.130 (5).
See also, OAG 84-299 (compare OAG 81-211, holding that mayor is a voting member of city commission per KRS 83A.030 (2) and KRS 83A.140, and therefore counts as a member of the legislative body for purposes of determining a quorum) . Based on the cited statutes, and opinions construing them, we conclude that the presence of the mayor did not establish a quorum of the members of the Elsmere City Council.
Nor was the number of members needed to establish a quorum reduced by the vacancy created by Mr. Wermeling's absence and ultimate resignation. On this issue, the Attorney General has observed:
Legal meetings of the city council can only be conducted when a majority of the total membership of the council is present. This is required in order for a quorum to exist under the terms of KRS 87.030. In determining a legal quorum where vacancies have occurred, the total number entitled to membership must be counted and not merely the remaining members. Reference McQuillin, Mun. Corps., Vol. 4 § 13.27 b. Thus, four (4) members of the city council must be present at a meeting in order for it to conduct business regardless of the fact there are . . . vacancies on the council.
OAG 77-745, p. 2. As noted, only three members of the city council are alleged to have been present at one or more meetings. This number falls short of the four members required in order to establish a quorum. For all of these reasons, we conclude that the Elsmere City Council did not violate the Open Meetings Act.
In addition to these substantive violations, Ms. Whittaker identifies the city's alleged failure to respond to her open meetings complaint as a procedural violation of the Open Meetings Act. KRS 61.848(1) provides: