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 Hopkins County Fiscal Court violated the Open Meetings Act when a quorum of its members met with architect Mike Barton on January 15, 2001, without notice to the public, to discuss the status of the renovation of the old post office building. For the reasons that follow, we conclude that the fiscal court violated KRS 61.810(1), the provision of law establishing the public's right to attend all meetings of a quorum of the members of a public agency at which public business is discussed or action is taken.
On January 17, 2001, Elbert Powell submitted a written complaint to Hopkins County Judge/Executive Richard L. Frymire in which he alleged that the fiscal court violated the Open Meetings Act by failing to give notice to the public or the press of its January 15 meeting at the Morton House. Although Mr. Powell did not propose a remedy for the alleged violation, he encouraged Judge Frymire to explain how the fiscal court "intend[ed] to rectify this situation." Having received no response to his complaint, Mr. Powell initiated this open meetings appeal on January 25, 2001.
In a response submitted to this office following commencement of Mr. Powell's appeal, Judge Frymire denied that the fiscal court violated KRS 61.810. He explained:
It is correct that on January 15, 2001, that architect Mike Barton briefed interested members of the Fiscal Court on the status of the renovation of the old Post Office building. No formal meeting was held and no actions were taken. This was strictly an information session to share progress with the Fiscal Court. If we had known that Mr. Powell wanted to attend, he would have been welcome. The meeting was not a closed meeting, nor were there any efforts to deny the fact that Mr. Barton would be briefing in regard to the progress of his work.
This was not a called meeting of the Hopkins Fiscal Court. I arranged the meeting with Mr. Barton for my information. Five members did attend and two did not. I suppose we could have cancelled Mr. Barton's briefing but that did not seem fair to him.
No decisions were made and no items were presented to the group for resolution. We simply heard a presentation by Mr. Barton, the architect.
In closing, Judge Frymire emphasized that "[t]here was no violation of KRS 61.810." We disagree.
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 A.2d 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). The Court acknowledged that:
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. Nevertheless, The Supreme Court firmly established that when a quorum is present, a meeting occurs, "within the meaning of the Act, [if] public business is discuss[ed] or action . . . taken by the agency." 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. Finally, in 00-OMD-147, the Attorney General found that no violation of the Open Meetings Act occurred notwithstanding the fact that a quorum of the members of the council met at a local restaurant after the meeting. Critical to our decision were the sworn statements of the council members that public business was not discussed, and the lack of evidence to controvert these statements.
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). 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. Finally, in 95-OMD-64 the Attorney General concluded that a work session attended by a quorum of the members of a public agency was a public meeting within the Act's contemplation, despite the fact that no action was taken. See also, 99-OMD-213.
Bearing in mind that a meeting takes place, within the meaning of the Act, if a quorum is present and public business is discussed or action is taken, we find that the January 15 meeting of five of the members of the fiscal court and the county judge to discuss the progress of renovations on the old post office building, constituted a violation KRS 61.810(1) inasmuch as it was conducted without proper notice to the public. The term meeting is broadly defined at KRS 61.805(1) to include "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. " Thus, the fact that the January 15 meeting was informational and informal does not alter our conclusion. It was a gathering of a quorum of the members of the fiscal court held for the purpose of discussing public business. Because it was not a regularly scheduled meeting of the fiscal court, it must be treated as a special meeting, subject to the following notice requirements found at KRS 61.823. 2
(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.
In construing these provisions, the Kentucky Court of Appeals has recognized that "the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. "
E. W. Scripps Company v. City of Louisville, Ky.App., 790 S.W.2d 450, 452 (1990). Echoing this view, the Kentucky Supreme Court has confirmed:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing E. W. Scripps Co., above. To promote this goal, the Open Meetings Law establishes the specific requirements for public agencies, set forth above, which must be fulfilled prior to conducting a special meeting. "The language of [KRS 61.823] directing agency action is exact."
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996).
The Hopkins County Fiscal Court acknowledges that it did not comply with these notice requirements in advance of its January 15 meeting. Having rejected its contention that it was not required to do so because "[n]o formal meeting was held and no actions were taken," we find that the fiscal court violated the Open Meetings Act by failing to give proper notice of its January 15 special meeting in contravention of KRS 61.823.
Further, we find that its failure to respond to Mr. Powell's open meetings complaint constituted a violation of KRS 61.846(1). That statute provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The fiscal court apparently issued no response of any kind. We urge the fiscal court to review the cited provision to insure that future responses conform to 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.
Elbert A. PowellP. O. Box 601Nortonville, KY 42442
Hon. Richard FrymireHopkins County Judge/ExecutiveHopkins County Courthouse30 South Main StreetMadisonville, KY 42431
Hon. Robert MooreHopkins County AttorneyHopkins County Courthouse25 East Center StreetMadisonville, KY 42431
Footnotes
Footnotes
1 That grant of authority is codified at KRS 61.846(2).
2 As this office noted in 94-OMD-50:
There are only two kinds of meetings-regular meetings and special meetings.
Regular meetings are held at specified times and places which are convenient to the public. Public agencies must provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that particular agency. [KRS 61.820.]
Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)(a), there are also posting requirements (KRS 61.823(4)(b). These requirements must be met each time for each called special meeting.
94-OMD-50, p. 4. The Open Meetings Act does not recognize "informational" or "informal" meetings of a public agency.