01-OMD-141 | KOGC

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 Board Member Nominating Committee of the Murray-Calloway County Public Hospital Corporation's Board of Commissioners violated provisions of the Open Meetings Act at its March 14, 2001, meeting by failing to provide adequate notice of that meeting, failing to maintain accurate minutes of that meeting, and conducting a vote by secret ballot at that meeting. Guided by the observation that "statutes enacted for the public benefit should be interpreted most favorably to the public," Courier-Journal and Louisville Times Co. v. University of Louisville Board of Trustees, Ky. App. 596 S.W.2d 374, 378 (1979), as well as the rule of strict construction which applies in these matters, KRS 61.800, we conclude that the Committee's failure to comply with KRS 61.823 and KRS 61.835 constituted violations of the Open Meetings Act.

On July 24, 2001, 1 Calloway County Attorney Randall A. Hutchens submitted a written complaint to Scott Seiber, Chairman of the Board of Commissioners, Murray-Calloway County Public Hospital Corporation, in which he alleged numerous violations of the Open Meetings Act. Specifically, Mr. Hutchens complained:

1. The meeting [of the Board Member Nominating Committee] was not noticed to the public and media as required by KRS 61.820. 2 The procedure required for special meetings was not followed under KRS 61.823.

2. The Nominating Committee exercised its function, i.e., voting for nominees, by secret ballot in violation of the Open Meetings Act.

3. The minutes of the meeting do not set forth an accurate record of votes and actions taken at the meeting in violation of KRS 61.835. There is no record of votes at this meeting.

As a means of remedying these alleged violations, Mr. Hutchens proposed that the Board "[v]oid the prior action of the Nominating Committee, including the submission of all nominees, " direct the Nominating Committee to "conduct a new meeting to determine what names should be submitted to the Fiscal Court and City Council," and cease conducting "prior 'meetings' . . .by a few members of the Committee in an effort to thwart the intent of the law . . . ."

In a letter dated July 30, 2001, attorney Steven C. Sanders responded to Mr. Hutchens' complaint on behalf of the Board of Commissioners and Mr. Seiber. With reference to Mr. Hutchens' allegation that the Committee failed to comply with the notice requirements for special meetings 3 codified at KRS 61.823, Mr. Sanders observed:

The Nominating Committee met at the Board room of the Murray Calloway County Hospital, being the room where normally all meetings of the Board and its Committees take place. The meeting was March 14, 2001. The meeting was publicized in January and February, 2001 at the regular meetings of the Murray Calloway County Hospital Board of Commissioners. The news media was present at each of these meetings.

Further, the meeting was publicized by the hospital under its March, 2001 Committees, Education, Events publication, a copy of which is enclosed. Please note that on the enclosed announcement, the meeting was set for 11:00, when the meeting actually took place at 12:00. Additionally, the meeting was publicized by written correspondence to Freed Curd, Mayor of the City of Murray, Mr. Bill Cherry, City Council member for the City of Murray, Judge/Executive Larry Elkins, Mrs. Marcia Brandon, Fiscal Court member, Dr. Phillip Klapper, Medical Staff representative, and Mr. Greg McNutt, President of the Chamber of Commerce for Murray and Calloway County.

The written notices stated the purposes of the meeting. I do not believe that written notice was posted in a conspicuous place in the hospital, such as a bulletin board, but as you can determine from the enclosed March, 2001 calendar, it was disseminated throughout the facility and was available to all interested persons.

With reference to Mr. Hutchens' allegation that the Committee conducted its vote for nominees by secret ballot, Mr. Sanders responded:

[E]ight (8) names were presented to the Nominating Committee, and each committee member was asked to write down the top six (6) candidates in their opinion. This is because three (3) of the candidates were for presentation to the Fiscal Court for selection of one (1) of such three (3), and three (3) to be presented to the City Council for selection of one (1) of such three (3). (At that time, there was a vacancy for a position to be filled by the City Council and a vacancy to be filled by the Fiscal Court.)

Those eligible to vote voted, and Pat Hutson, with the assistance of Hazel Morton, tallied the votes and determined, if I remember correctly, who the six (6) nominees were, and thus, what two (2) persons were not selected for presentation to either of the City Council or the Fiscal Court.

The tally votes were not sealed, and I do not recall that the committee members were asked to sign their individual tally sheets. From my memory, no one requested to examine the ballots. The ballots were handed from the voting committee members to Mrs. Hutson. No one was disallowed inspection of the ballots. No one questioned the ballots until Judge/Executive Elkins' office called later.

In my opinion, this was the simplest manner and method by which the six (6) nominees could be determined. True, the committee members could have voted audibly, each after the other, on the eight (8) persons, but the simpler, easier vote was by the process used. No objection was made as to the manner and method.

With reference to Mr. Hutchens' final allegation concerning the accuracy of the minutes of the meeting, Mr. Sanders commented:

The six (6) persons believed by the Nominating Committee to have the best credentials to serve were then determined. Since Judge/Executive Larry Elkins was not present, and Mayor Freed Curd was present, Mayor Curd then asked for three (3) persons to present to the City Council. I believe those were persons that he had helped solicit as nominees, but I could stand corrected.

By elimination, obviously, the other three (3) persons were presented to Judge/Executive Larry Elkins for presentation to the Fiscal Court.

Therefore, contrary to your accusations, there was an accurate record of votes and actions because the six (6) persons with the highest number of votes were selected.

In closing, Mr. Sanders asserted that "substantial compliance was met by the Murray Calloway County Public Hospital Corporation and its Nominating Committee." He provided Mr. Hutchens with a copy of the minutes of the meeting, 4 and advised that the "recommendation has been made to the hospital to build a bulletin board so that meetings can be noticed on the board."

On appeal, Mr. Hutchens complains that the Nominating Committee acknowledges violations of KRS 61.823 and KRS 61.835 in its response, "describ[ing] this failure as a technical violation." Continuing, he observes:

The response admits that the votes were done in writing and there was no announcement of number of voters. Just as important is the fact that there was no record or announcement of who voted for whom. For a meeting to be open it must be clear that committee person "A" voted for candidate "X". Whether this is done by talking silently or by "secret" written ballot is the same result. Anyone in attendance would not know how many votes any candidate received and which candidates were supported by which committee member.

Further, he notes that "there was virtually no discussion and the candidates' names were submitted for vote, [making it appear] that members of the Nominating Committee discussed the names prior to the meeting." He urges this office to require the Board of Commissioners to implement the remedial measures he proposed in his letter of complaint.

In a supplemental response directed to this office following commencement of Mr. Hutchens' appeal, Mr. Sanders defended the Nominating Committee's actions. Responding to each of Mr. Hutchens' specific allegations, he stated:

KRS 61.823

The only possible violation under KRS 61.823 is "? 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 was not posted by permanent attachment to a bulletin board. However, it was disseminated in many more places and directions than a posted notice would have provided, as can be observed from (a) announcements at regular Board of Commissioners' meetings in the presence of the news media and other interested persons; and (b) search by Board Members and interested persons for candidates throughout the county; and (c) the Calendar of Events of March, 2001, which was disseminated in February, 2001; and (d) written correspondences to the Fiscal Court and City Council asking that they select their Nominating Committee members; and (e) written correspondence to the City of Murray Mayor and County of Calloway Judge/Executive, Medical Staff, and other members of the Committee, including the Chamber of Commerce president.

KRS 61.835

The undersigned has questioned persons at the meeting regarding secret ballots. None has related any secret balloting. The undersigned was personally at the meeting, and there was no one who requested to look at the ballots, and a voice vote was taken on the two (2) candidates who tied. The Minutes, as well as the announcement at the meeting, accurately reflect the vote. Six (6) persons were selected.

. . .

Please note that anyone at the meeting, whether on the committee or from the public, requesting to examine the ballots could have done so as they were there for examination. The meeting was open, the records were open and the balloting was open, and could have been obtained simply upon request.

Noting that he has recommended to the Murray-Calloway County Public Hospital Corporation that it obtain two bulletin boards to be used to post documents, Mr. Sanders concluded in a section of his response designated "Alleged Technical Violation":

Again, KRS 61.823 provides posting in a conspicuous [sic]. The undersigned believes that the dissemination of notices well before the meeting met the purpose of the Open Meetings Act, which is the intent to maximize notice to the public of meetings.

. . .

Additionally, under KRS 61.835, the requirement does not require who voted for whom. If that was the intent of the Legislature, then, the Legislature would have limited voting at public meetings to roll call votes. Even audible votes are difficult to determine.

It is the opinion of the undersigned that substantial compliance under KRS 61.848(5) has been fully met by the Hospital and that no remedial action is necessary.

Shortly after mailing this response, Mr. Sanders offered additional written support for the Nominating Committee's actions consisting of "a hospital checklist of chronological requirements leading up to and after the nominating meeting." Additionally, he indicated that he would furnish this office with the vitae of the eight candidates, along with their signed trustee disclosure forms, to demonstrate that the "nominating committee had educational information, experience in the workplace, organizational memberships, etc. for each of the eight candidates, " 5 obviating the need for lengthy discussion.

Acknowledging the great lengths to which Mr. Sanders has gone in an attempt to justify the Nominating Committee's actions at its March 14 meeting, we nevertheless conclude that if that meeting was a special meeting, 6 and the record before us suggests that it was, then the Committee's failure to strictly comply with the notice requirements codified at KRS 61.823 constituted a violation of that section. Regardless of whether the meeting was a regular or special meeting, we conclude that the manner in which it conducted its vote for nominees to the Board of Commissioners can only be characterized as a secret ballot, notwithstanding the fact that those ballots would have been made available for inspection upon request, and a secret ballot is impermissible under the Open Meeting Act and KRS 61.835. This is because the latter provisions require that the minutes of action taken at every meeting of a public agency set forth an accurate record of votes and actions at such meeting. None of these violations can properly be characterized as "technical" ones. As we observed in 00-OMD-114, "The Act itself does not recognize a class of violations of lesser gravity than the remaining class of violations, and therefore capable of being dismissed as merely 'technical.'" 00-OMD-114, p. 3. We address these violations in the discussion that follows.

Fundamental to an analysis of the propriety of a public agency's conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:

The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.

In interpreting this provision, Kentucky's courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," E. W. Scripps Co. v. City of Maysville, Ky. App., 750 S.W.2d 450 (1990) cited in Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), and that the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions." Id. at 923.

As noted, KRS 61.823 establishes requirements for conducting a special meeting which include the following:

(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.

The record before us does not establish that the Nominating Committee complied with these requirements by delivering written notice, consisting of the date, time, and place of the March 14 special meeting, and the agenda for the meeting, personally, by fax, or by mail, to each member of the public agency, as well as each media organization that had requested notice, at least twenty-four hours before the special meeting. Further, the record does not establish that the Committee posted written notice, at least twenty-four hours before its March 14 special meeting, in a conspicuous place in the building where the meeting took place, and in the building that houses its headquarters. While we see nothing wrong with the Board of Commission's public announcement of the upcoming Nominating Committee meeting at its January and February regular meetings, inclusion of the meeting on the Hospital's March 2001 calendar of events, and reference to the meeting date in correspondence directed to various officials, "these steps should have been taken in addition to, rather than in lieu of, the requirements found at KRS 61.823(2), (3), and (4)." 00-OMD-227, p. 8 (holding that Department of Insurance did not comply with notice requirements codified at KRS 61.823 by posting meeting date of its Health Insurance Advisory Council Special Meeting on its website.) Accordingly, we must conclude that the Nominating Committee violated KRS 61.823 at its March 14 meeting. "Anything less than strict compliance [with the requirements of the Open Meetings Act] ," this office recently noted, "is in derogation of 'the public good.'" 01-OMD-135, p. 5, citing Ratliff at 923 (holding that school system's failure to include agenda in notice of special meeting issued to news media represented less than strict compliance with the letter of the law).

By the same token, we find that the Nominating Committee's failure to comply with the requirements of KRS 61.835 constituted a violation of the Open Meetings Act. That statute provides:

The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.

In an early opinion construing this provision, the Attorney General observed, "When final action is taken by a public agency in open session the vote cannot be by secret ballot and it must be recorded in the minutes how each member voted. " OAG 82-341, p. 2. Nine years later, the Attorney General was asked to opine on the issue of whether the vote of a public agency by secret ballot was permissible as long as the number of votes for and against were properly recorded in the minutes. OAG 91-196. There, we observed:

KRS 61.835 requires in part that the minutes of action taken at every meeting of a public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded. In OAG 82-412, at page four, we said the statute requires that the minutes of the meeting show how each member voted or if he abstained except, if the vote was unanimous, it is sufficient to so state in the minutes. Finally in OAG 82-341, at page one, this office said, "When final action is taken by a public agency in open session the vote cannot be by secret ballot and it must be recorded in the minutes how each member voted. "

Thus, . . . a public body, cannot vote by secret ballot and the minutes of the meetings . . . must indicate how each member voted on each issue before the [public body]. KRS 61.835 is the controlling provision.

OAG 91-196, p. 2. "Although the minutes of the meeting may contain more than the minimum statutory requirement, they may not contain less." 98-OMD-119, p. 5.

Notwithstanding the fact that the ballots used by the members of the Nominating Committee would have been made available for inspection, upon request, 7 at the Committee's March 14 meeting, we believe that the method used for conducting the vote for the six Board of Commissioners candidates can only be described as a secret ballot. While we acknowledge the difficulties associated with conducting a roll-call vote on each candidate, we believe that no other option was available to the Committee, the votes on the candidates not being entirely unanimous. To the extent that the public was unable to ascertain how each member of the Committee voted on each candidate, either by observing the vote, or by reviewing the minutes of the meeting reflecting the vote, we find that the Nominating Committee failed to comply with the requirements of KRS 61.835. By virtue of this provision, the public is entitled to know who voted and how they voted. Any other interpretation of KRS 61.835, is, in our view, "clearly inconsistent with the natural and harmonious reading . . ." of the Open Meetings Act considering the legislative statement of policy codified at KRS 61.800, which recognizes that "the formation of public policy is public business . . . ." Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992).

The record contains insufficient proof to support Mr. Hutchens' allegation that the members of the Committee met in advance of the meeting to consider the qualifications of the individual candidates, and avoid the need for public discussion. Mr. Sanders indicates that the candidates' resumes and vitae were distributed to the Committee members prior to the meeting to assist them in assessing the candidates' qualifications, and this may well have obviated the need for public discussion. Nevertheless, we remind the Nominating Committee that:

The [Open Meetings] 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 meetings requirements of the Act.

Yeoman v. Commonwealth of Kentucky Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998). Any discussions among members of the Committee that falls within this zone of prohibited conduct must be avoided at all costs.

In closing, we note that the Attorney General is not empowered to compel the Nominating Committee of the Murray-Calloway County Public Hospital Corporation's Board of Commissioners to implement the remedial measures Mr. Hutchens proposed in his letter of complaint and letter of appeal. The Attorney General's role in these matters is clearly defined at KRS 61.846(2), and is limited to issuing a written decision "which states whether the agency violated the provisions of KRS 61.805 to 61.850." Having determined that the Nominating Committee violated KRS 61.823 and KRS 61.835 prior to, and in the course of, its March 14 special meeting, the Attorney General's duties are fully discharged.

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.

Randall A. Hutchens101 S. 5th StreetMurray, KY 42071

Scott SeiberChairman, Board of CommissionersMurray Calloway County Public Hospital Corporation803 PoplarMurray, KY 42071

Stephen C. SandersAttorney at Law104A North Seventh StreetMurray, KY 42071

Larry ElkinsCalloway County Judge/Executive101 South 5th StreetMurray, KY 42071

Footnotes

Footnotes

1 Although Mr. Hutchens' complaint was submitted over four months after the alleged violations occurred, the complaint was not time barred. KRS 61.846(1) does not restrict the time within which an open meetings complaint must be brought. KRS 61.846(2), on the other hand, requires the complainant to appeal the agency's denial of that complaint within sixty days of receipt of the denial.

2 Although Mr. Hutchens alleges a violation of KRS 61.820 based on the Committee's failure to give notice to the public and media, that provision does not contain a specific notice requirement. Instead, KRS 61.820 requires public agencies to "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 . . . ." In construing this provision, the Attorney General has concluded that the final clause of the statute "invests [public agencies] with some latitude in determining whether to meet on a regular or as needed basis." 99-OMD-166, p. 5. In the latter case, all of the agency's meetings must be treated as special meetings, and it must "scrupulously comply with the notice requirements set forth at KRS 61.823." Id.