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 Taylor County Fiscal Court violated the Open Meetings Act in the course of its May 15, 2001, meeting. For the reasons that follow, and upon the authorities cited, we conclude that the fiscal court's actions constituted a violation of the Act.
On May 16, 2001, Central Kentucky News-Journal publisher, Richard RoBards, and news editor, Beth Foster, submitted a written complaint to Taylor County Judge/Executive Eddie Rogers in which they alleged that the magistrates' whispered discussion of the proposed county budget that took place at the fiscal court's May 15 meeting contravened the requirements of the Open Meetings Act. Specifically, Mr. RoBards and Ms. Foster asserted that the inaudible discussion violated KRS 61.800, declaring that "the formation of public policy is public business and should not be conducted in secret," and proposed as a remedial measure that the fiscal court repeat its whispered discussion openly and publicly so that all in attendance can hear.
In a response issued on May 23, 2001, Judge Rogers defended the fiscal court's actions. With reference to Mr. RoBards' and Ms. Foster's objections to "'whispered discussions' between magistrates, and . . . Magistrate Kirtley approaching [the Judge] with an apparent question concerning the budget then under review," he explained:
The County Attorney and I observed several Court members discussing with or inquiring of another concerning the printed budget document. On one occasion, perhaps three magistrates spoke to each other at one time. The discussion was not amplified to the audience. On one occasion Magistrate Kirtley asked a question of me regarding a specific section in the budget document, at the bench, which did have a live microphone.
Please be advised that the Court does not consider this action in violation of KRS Chapter 61 with regard to open meetings. A reference to the statute and a few practical examples I believe will establish that the Court is correct in this opinion. KRS 61.810(2) states in part "nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to education the members on specific issues".
In fact this is precisely what occurred. The Court had before it the budget document. The members were discussing between themselves specifics of the budget in order to educate themselves on specific items of this multipage and many item document. This is in fact not improper.
(Emphasis in original.) Judge Rogers likened these inaudible discussions to the "individual member discussions" that occur in the United States Senate and House of Representatives, and the Kentucky General Assembly, noting that "these discussions are not amplified to the audience as a whole, . . . nor are they expected to be." In his view, "this is the particular purpose for [KRS 61.810(2)]. It permits discussion between and among members, for the allowed purposes, whether before, during, or after a meeting." In closing, Judge Rogers observed:
The standard you now seek to impose, that every utterance or discussion between members must be shared for all to hear, is simply not practical nor the law. If our State General Assembly is not held to such standard, our Court should not be. There simply is no requirement for every thought, or every discussion falling under the protection of Section 2 of KRS 61.810, to be written, recorded or publicly expressed. Individual members may indeed discuss and educate each other on the issues, whether amplified for all to hear or not, so long as they act publicly and on the record. The answer would be different if the entire Court sought to meet as one, and to shield its action and discussion from public scrutiny. However, in this instance, members individually studied the document in question, and while reviewing same, some did ask others questions on points of clarification or understanding. This they are permitted to do.
On this basis, the fiscal court declined to implement the proposed remedy.
On appeal the Central Kentucky News-Journal argues that the whispered discussions that occurred at the fiscal court's May 15 meeting violated not only KRS 61.800, recognizing that the formation of public policy is public business and should not be conducted in secret, but also violated KRS 61.840 , requiring public agencies to "provide meeting room conditions which insofar as is feasible allow effective public observation of the public meeting. " 1 Mr. RoBards and Ms. Foster reject the county judge's argument that KRS 61.810(2) authorized the whispered discussion, noting that this "subsection doesn't relate to what happened during the fiscal court meeting and doesn't relate to discussions that take place during meetings." In addition, they reject the fiscal court's analogy of its whispered discussions to the "individual member discussions" that take place in Congress and the General Assembly, arguing that although "[f]ive legislators can have a during-the-meeting discussion while the meeting continues around them [,w]hen five members of a five member fiscal court are involved in a whispered discussion, the entire body is participating in the 'closed' discussion . . . ." It is the News-Journal's position that "[t]he theory behind the law is not that the public just be allowed into the room where the meeting is taking place, but that the public come and have a meaningful opportunity to observe the government working." It was this opportunity, they assert, that Taylor County residents were denied.
In a supplemental response directed to this office following commencement of the News-Journals' appeal, Taylor County Attorney Craig Cox elaborated on the fiscal court's position. 2 Reiterating that not all of the magistrates participated in the whispered discussions, and that the News-Journal exaggerated the duration of the discussions, he defended Judge Rogers' analogy of those discussions to discussions among member of the General Assembly. In support, he cited KRS 61.805(2) observing:
[T]he statute is and must be indeed equally applicable to both public bodies. It is by very definition applicable to both. KRS 61.805(2) states in part: "Public Agency means any state legislative ? or other state agency . . . any county . . . or political subdivision of the state . . . ."
(Emphasis in original.) In response to Mr. RoBards' and Ms. Foster's argument that KRS 61.810(2) has no application to discussions conducted in an open, public meeting, Mr. Cox maintained:
[KRS 61.810(2)] recognizes the need of public officials to have some reasonable discourse between themselves to educate or inform other members of the body with regard to pending matters. KRS 61.810(2). This provision states in part "nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues". In fact, this is precisely what occurred. The Court had before it the budget document. The members were discussing between themselves specifics of the budget in order to educate themselves on specific items of this multipage and many item document. This is in fact not improper.
The plain language of this statute does not limit its applicability to discussions between magistrates only as being appropriate for purposes of educating themselves on the issues only at times when they are not in session It has equal applicability to discussions between magistrates whether they are in an "official meeting" or not. If the General Assembly had as its intent to specify that magistrates could speak to one another and educate themselves about issues only at times other than public meetings, it would have done so.
This meeting was indeed held in the public. Legal counsel for the newspaper expressed in public print that he agreed that the members were not in executive session, as was my own opinion. It is true that some of the comments between the members may not have been heard by all in the room. However, it was clear to all in the room that the magistrates were gesturing and commenting about specific items and asking questions to educate themselves concerning the categorization of certain expenditures in the budget.
(Emphasis in original.) In his view:
The pertinent question is: May individual members of public bodies, large or small, inquire of one another at a public meeting with regard to a document in order to educate themselves with regard to its terms and provisions, without having to fully amplify every word of such inquiry to all in attendance? The answer is "no" where the purpose is to educate and inform.
Respectfully, we disagree.
The statute at issue in this appeal has been the subject of a number of open meetings decisions since its enactment in 1992. KRS 61.810(2) provides in full:
Any 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, 3 shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
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 (emphasis added).
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, public 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 .; compare, 00-OMD-63 (holding that series of less than a quorum meetings with county judge/executive to discuss possible jail site fell within the zone of conduct prohibited by KRS 61.810(2)); 98-OMD-18 (holding that KRS 61.810(2) did not authorize "informal" meeting of newly appointed water district commissioners with commissioners from merged water district where quorum of members of district were present and public business was discussed, notwithstanding claim that a meeting was held only for the purpose of educating new members).
Simply put, the final sentence of KRS 61.810(2) cannot be construed to authorize whispered discussions among members of a public agency when a quorum of the agency's members are present in an open, public meeting, and the discussion focuses on an issue about which the agency has the option to take action. As this office observed in 98-OMD-18:
[KRS 61.810(2)] is directed at public agencies which hold a series of less than quorum meetings with the intent to circumvent the Open Meetings Act, and provides a narrow exception for discussions between individual members aimed at educating the members on specific issues. It cannot be construed so broadly as to permit meetings at which a quorum of the members of the public agency are present, and issues of direct public interest are discussed.
98-OMD-18, p. 5. If other public agencies are engaging in this practice, they are not doing so under authority of KRS 61.810(2), and it is not their practices we are called upon to review.
Accordingly, we find that the Taylor County Fiscal Court violated the Open Meetings Act by engaging in whispered discussions of the public's business, namely, the proposed county budget, at its May 15 public meeting. It is not the number of magistrates participating in those discussions, or the duration of the discussions that is determinative, but the content of the discussions and the open forum in which they were conducted. Because a quorum of the members were present, and public business was being discussed, the meeting was required to the "open to the public at all times . . .," and not interrupted by whispered discussions to which the public was effectively denied access.
In support, we note that on more than one occasion the Attorney General has interpreted KRS 61.840, requiring public agencies to "provide meeting room conditions which insofar as is feasible allow effective public observation of the public meeting, " to require agencies to insure that members of the audience can "effectively observe a public meeting" by "hear [ing] what is said . . . . " 97-OMD-28, p. 2, 3. In the latter decision, this office held that an agency violated the Open Meetings Act by failing to control the noise at the meeting thereby frustrating the public's ability to observe the meeting. See also 99-OMD-117 (holding that KRS 61.840 requires public agencies to address complaints concerning overcrowding when a larger than anticipated audience attends its meetings). These decisions were premised on the notion that "members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings . . . ." 95-OMD-99, p.3; See also, 99-OMD-196 (holding that local facilities planning committee failed to discharge its duties under KRS 61.840 to allow effective public observation of its meetings when some members sat with their backs to the audience, and no microphones were provided.) It was of this statutory right, as the News-Journal correctly notes, that the public was deprived.
Having said this, we acknowledge that unreasonable restrictions on communications between members of public agency, and members of the agency and staff, cannot be imposed, even in an open public forum. Hence, if the matters under discussion are purely personal (such as a request for a glass of water), or are aimed at securing staff support or assistance (such as a request that a document be retrieved from the member's office), the Open Meetings Act is not abridged by discreet communications. Nevertheless, these communications remain the exception rather than the rule, and the public agency must avoid any whispered, inaudible, or closed discussion of the public's business, including discussion among members of the fiscal court of the terms and provisions of the county's proposed budget. No doubt, some intrusions on the concept of open government are more offensive than others, but we find that the language of the Open Meetings Act, and its underlying intent, support a strict prohibition on any whispered discussions of public business in a public meeting. Any other conclusion begs the question: Where does the right of public agency members to privately educate themselves in a public meeting end, and the requirement of open discussion of the public's business begin? Any diminution of the principle of open government must, in our view, be checked.
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 The News-Journals' account of what transpired at the meeting does not markedly differ from the fiscal court's account. Mr. RoBards and Ms. Foster comment:
When Taylor County Judge/Executive Eddie Rogers called the [budget] item as the next on the agenda, magistrates spent several minutes whispering. About 20 minutes into the whispered discussion, Magistrate Bobby Kirtley carried a copy of the budget to Rogers. The two discussed some point of the document, in whispers, and Kirtley returned to his seat with other magistrates.
The News-Journal does not challenge Judge Rogers' position that his discussion with Magistrate Kirtley took place before a live microphone, but maintains that the discussion was nevertheless inaudible. The only significant factual disparity between the accounts given by the parties centers on the duration of the whispered discussion and the number of magistrates involved.
2 Appended to Mr. Cox's response were three written statements prepared by Magistrates Gorin and Kirtley, and Judge Rogers, acknowledging that discussions occurred when the budget item was called.
3 Providing 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 . . . ."