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 a quorum of the members of the Monterey City Council violated the Open Meetings Act prior to the Council's April 3, 2001, meeting by conducting a meeting or meetings from which the public, and other members of the Council, were excluded to discuss and reach a consensus on a sidewalk plan introduced and approved at the April 3 meeting. For the reasons that follow, we find that the conflicting evidentiary record before us is insufficient to support the claimed violation.
On March 18, 2002, Rebecca Albaugh, Mayor of the City of Monterey, submitted a complaint to each of the council members in which she alleged "that a quorum of the council violated the Open Meetings Act by meeting with Gerald Kemper to make a collective decision on a sidewalk plan without notifying the public." In support of this allegation, Mayor Albaugh observed:
Conversations between the Wilson's [sic] during the meeting indicated they all knew where sidewalks would go in this plan presented. Also, that the money had not really come from the legislature but from a lawsuit that Mr. Kemper had won. This was a shock to the people attending, including the other two council members. A report from the Sidewalk Committee at a previous meeting stated that the majority of citizens surveyed about the project wanted repair work done to existing sidewalks.
It did appear that a meeting had taken place, between the quorum of the council and Mr. Kemper, without the public being invited or having knowledge of pending action. Without prior consultation of all council members, the mayor, and the citizens, a quorum did present a sidewalk plan designed by Gerald Kemper, on April 3, 2001 for sidewalks in the City of Monterey, that would be paid for with public money in the amount of $ 150,000. . . . Donald Wilson made the first motion to approve the plan, Connie Collins seconded it. These council members: Jeff Wilson, Chris Wilson, Connie Collins, and Donald Wilson all voted in favor of Gerald Kemper's plan. Before the vote, the other council members objected to voting on the plan because this was the first time they had seen or heard this. They said they would like to look at the plan and study it. They asked that the motion be tabled but that failed. The plan was then voted on and passed 4-2.
As a means of remedying the alleged violation, Mayor Albaugh proposed that the Council publicly discuss the sidewalk plan at its next meeting, that the Council void the action taken on the previously approved sidewalk plan, that members of the Council who voted for the plan abstain from future votes on the sidewalk plan "because of public trust issues," and that the Council members agree "that there be no further meetings of the quorum or contact with Gerald Kemper relating to city business. . . ." Mayor Albaugh received no response to her open meetings complaint, prompting her to initiate this appeal.
Given the unusual procedural posture in which Mayor Albaugh's complaint and appeal were presented, which we will discuss below, this office received six separate, and conflicting, responses to the notification of open meetings appeal issued to the council members. Former council member Jeff Wilson, who served at the time of the alleged violation, and current members Donald Wilson and Connie Collins denied the allegations in Mayor Albaugh's complaint as did Ed Estil. Jeff Wilson commented:
As far as ever meeting with Gerald Kemper, yes I did meet with him in the fall of 1999, before the election. What we discussed was that he wanted to sponsor a campaign dinner, so that we could talk to the people of Monterey and let them know where we stand on some of the issues concerning Monterey. At no time in this meeting was sidewalks ever mentioned, and at this time no quorum was present. At no time was any promises made, in case of our upcoming election. After I was elected, I have never met with Mr. Kemper to discuss anything, except if I happened to see him on the streets, we might talk about the weather, nothing concerning Monterey. [Sic.]
Donald Wilson, Connie Wilson, and Ed Estil echoed Jeff Wilson's statements, each denying that he or she ever violated the Open Meetings Act and expressing the view that Mayor Albaugh filed the complaint and appeal to deflect attention from herself and alleged irregularities in her administration. 1
Conversely, council members Dennis Atha and Janet Cummins submitted responses in which they too questioned the actions of the remaining members of the Council prior to the April 3, 2001 meeting. Mr. Atha observed:
It seems to me as a council member that some things brought to the meetings were collective thoughts and plans of a quorum of the council. Relating to the sidewalk issue, I was the chairperson for the committee. I questioned the community as did Josie Hazlett and the result was that the majority of people here wanted old sidewalks repaired before new ones were put in. The plan presented by Don Wilson at the April meeting, 2001, had never been viewed by me and, since learned, not by one other council member nor the mayor. As the chair for the sidewalk committee, I thought we needed to listen to the public and what they thought. It was obvious to me that the plan was a collective thought of those voting in favor. I moved to table this plan for lack of prior information. The motion was seconded by Cummins and defeated 4 to 2.
Echoing Mr. Atha's views, Ms. Cummins stated:
The April 3, 2001, meeting of the Monterey City Council did allow an assumption that some collective action was determined by the majority of the council members relating to our city's grant for a sidewalk project. When the issue of a sidewalk plan was motioned, I felt a bit confused as to the validity of its nature. The appointed chairperson for the Sidewalk committee, Dennis Atha, was not even aware of these proposed plans. In addition, when the discussion led to the issue being tabled, motion made by Council Member Dennis Atha and seconded by myself, it was over-ridden by the motion being ignored. Quite frankly I felt that something was very out of order. The Sidewalk Committee chairperson was not aware of any discussions that had taken place for this plan.
Although the circumstances of the April 3 meeting at which the previously undisclosed sidewalk plan was approved suggest that prior discussion may have occurred between members of the Council, and none of the council members alleged to have participated in these discussions offer any explanation as to how the plan was developed, the record before us is devoid of hard evidence supporting Mayor Albaugh's allegations. The widely divergent accounts presented by the parties with regard to the April 3 meeting, coupled with this lack of hard evidence, compel us to conclude that the record is insufficient to support the claimed violation. Simply stated, we are not equipped to resolve this factual dispute in either the Mayor or the Council's favor.
We begin by noting that this appeal comes to us in an unusual procedural posture. KRS 61.846(1) provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Because Mayor Albaugh is the Monterey City Council's presiding officer, it is questionable whether she may file a complaint or initiate an appeal concerning alleged violations of the Open Meetings Act that may have been committed by members of the council over which she presides. We know of no prior decisions of the courts or this office in which this issue has been raised and therefore have no precedent to guide us. Obviously, it would serve no purpose for Mayor Albaugh to submit a complaint to herself. Nevertheless, we do not believe that she should be denied the right of appeal, otherwise granted to the public, because of the position she holds when she believes a violation of the Act has occurred. Although the Council's failure to respond to Mayor Albaugh's complaint was mitigated by the unusual procedural posture in which her complaint was presented, we do not believe that this unusual procedural posture precludes an appeal to the Attorney General or relieves him of his duty to issue an open meetings decision stating whether a violation occurred.
Unfortunately, the conflicting facts in this appeal do not lend themselves to a clear resolution of this question. The law is clear. KRS 61.810(1) provides that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times. . . ." A meeting is defined as "all gatherings of any 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." KRS 61.805(1). "The express purpose of the Open Meetings Act, " the Kentucky Supreme Court has opined, "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).
In 98-OMD-94 and 00-OMD-114, the public agencies whose "secret" meetings were challenged acknowledged that the meetings occurred but defended the meetings on various grounds. 2 Further, in 98-OMD-94 and 00-OMD-114, the complainants personally observed the "secret" meetings in progress. In the appeal before us, the members of the Council who are alleged to have participated in the "secret" meeting or meetings deny that such meetings occurred. Nor are there any witnesses to the alleged meetings who have come forward to attest to what they saw.
It is for this reason that we are not equipped to resolve the factual dispute concerning whether a quorum of the members of the Monterey City Council met in advance of the April 3, 2001 meeting to reach an agreement on a sidewalk plan for the City. See 00-OMD-142 (issue of actual delivery of meeting notice to city commissioner is factual in nature, where agency maintained delivery was made and commissioner denied same, and Attorney General cannot resolve factual dispute in an open meetings appeal); 00-OMD-169 (issue of whether member of public voluntarily left or was forcibly removed from meeting was a factual issue which could not be resolved by Attorney General where evidence was conflicting); see also 99-OMD-167; 99-OMD-203. Given the inconsistencies in the written record, we cannot resolve this dispute in either the Mayor or the Council's favor. Nevertheless, we encourage all of the parties to this appeal to re-dedicate themselves to strict observance of the Open Meetings Act, and to be guided by the statement of legislative policy found at KRS 61.800 recognizing that "the formation of public policy is public business . . . ."
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.
Mayor Rebecca Albaugh205 Taylor StreetMonterey, KY 40359
Dennis Atha10335 Hwy. 127Monterey, KY 40359
Connie Collins355 Taylor StreetMonterey, KY 40359
Janet Cummins10275 Hwy. 127Monterey, KY 40359
Jeff Wilson285 Taylor StreetMonterey, KY 40359
Donald Wilson10450 Hwy. 127Monterey, KY 40359
Ed Estil34 Taylor StreetMonterey, KY 40359
Footnotes
Footnotes
1 The council members also expressed various concerns about city finances and election practices. These concerns are not an appropriate subject for resolution in an open meetings appeal, and we therefore do not address them.
2 In 98-OMD-94, the entity against which the complaint was filed acknowledged that the meeting occurred, but denied that it was a public agency governed by the Open Meetings Act. In 00-OMD-114, the public agency against which the complaint was filed acknowledged that an "informal discussion" of a quorum of the agency members took place in an adjoining room before the regular meeting convened, but characterized the meeting as a "spur of the moment event" and a mere "technical violation" of the Act. In both cases, the Attorney General found that a violation of the Act had occurred.