Request By:
Fred Lucas
P. O. Box 368
1216 Wilkinson Blvd.
Frankfort, KY 40601William May, Jr.
Mayor
315 W. 2nd Street
P.O. Box 697
Frankfort, KY 40601-0697A. James Higgs
City Attorney
213 St. Clair Street, Ste. 204
Frankfort, KY 40601
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 Frankfort Board of Commissioners violated the Open Meetings Act by conducting a meeting or series of meetings from which the public was excluded to discuss City Manager Ken Thompson. For the reasons that follow, we conclude that the evidentiary record before us is insufficient to support the claimed violation, and it is this record alone that we review on appeal. We are not empowered to engage in independent fact-finding or to consider information that does not appear in the record, and the conflicting evidence in that record precludes a finding that the Board violated the Act.
On May 13, 2002, State Journal staff writer Fred Lucas submitted a written complaint to Mayor William May, Jr. in which he alleged that "[w]ithout calling a public meeting or calling a meeting to go into executive session, commission members determined on April 25 that they had enough votes to fire the City Manager, " and that thereafter "two members of the Board of Commissioners approached the City Manager to inform him he had the option of resigning or being fired." Acknowledging that executive sessions were conducted between October 1, 2001 and May 1, 2002 for the stated purpose of discussing "personnel, " Mr. Lucas nevertheless maintained that the Commission's decision "violated KRS 61.815 which governs closed meetings." As a means of remedying the alleged violation, Mr. Lucas proposed that the decision "be voided with the matter to be dealt with again using legally required procedures."
In a response dated May 16, 2002, Mayor May denied that the Board of Commissioners had engaged in a course of conduct that violated the requirements of the Open Meeting Act. Although he indicated that he had been unsuccessful in his attempts to contact Commissioner Lynn Bowers, 1 Mayor May advised:
After speaking with city commissioners Robert Roach, Sallye Stumbo, and Tracye Thurman, it is clear to me that there was no violation of KRS 61.805(1). There was no collective decision made by a majority of members of the board of commissioners to fire the city manager, or ask for his resignation. In addition, there was no action taken in violation of KRS 61.810(3) [sic], in the sense that there was no collective decision by the members of the board of commissioners to make a positive or negative decision regarding the city manager. Also, there was no effort made to poll the board of commissioners.
Commissioner Roach and I discussed our discontentment and the apparent discontentment of other members of the board of commissioners. The city manager was not presented with an ultimatum. When commissioner Roach and I went to discuss our feelings with the city manager, we acted on our own and were aware of the discontentment of the others, which was based on comments individual members of the board of commissioners had expressed about the city manager over a period of time.
In sum, Mayor May maintained that a quorum of the Board of Commissioners did not conduct a single meeting of a quorum of its members, or a series of less than quorum meetings where the members attending one or more of the meetings collectively constituted a quorum, and from which the public was excluded, to discuss the city manager.
Shortly thereafter, Mr. Lucas initiated this appeal, requesting that the Board of Commissioners' decision "be voided, 2 with the matter to be dealt with again using legally required procedures." In support of his position that an open meetings violation had occurred, he noted:
[Commissioner] Bowers said she was never notified of the decision, and was never included in the discussion, and said she was surprised when she found out.
When Bowers brought this to the public's attention on May 9, 2002, two board members said they discussed it at a closed session in April. However, two other board members have said the discussion never took place at this meeting. The City Manager also said this discussion was never brought up at a closed session in which he was present. No formal evaluation was ever announced, while the City Manager regularly is a party to executive sessions.
In supplemental correspondence directed to this office following commencement of Mr. Lucas' appeal, Frankfort City Attorney A. J. Higgs, Jr. responded to these comments:
Mr. Lucas alleges a sequence of events which he suspects occurred. Responding to Mr. Lucas' original complaint to the city dated May 13, 2002, Mayor May, one of the two board members who actually spoke to City Manager Ken Thompson on April 25, 2002, states without equivocation what actually did happen and what did not. An expression of discontent and suggestion of resignation by a board member, even if the member also expresses his or her opinion about how other board members feel, does not constitute an action by the board, nor does it constitute an attempt to circumvent the open meetings law.
For these reasons, Mr. Higgs concluded that "no violation occurred." On the basis of the limited factual record before us, consisting of Mr. Lucas' complaint, Mayor May's response, Mr. Lucas' letter of appeal, and Mr. Higgs' reply, we concur.
Although he does not frame his objections with precision, it is apparently Mr. Lucas' belief that the Board of Commissioners violated the Open Meetings Act by discussing the city manager's termination in a secret meeting that violated KRS 61.810(1) or a series of meetings that violated KRS 61.810(2). 3 The general mandate of the Act is codified at KRS 61.810(1) and 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, except for the following:
Recognizing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, in 1992 the General Assembly enacted KRS 61.810(2) which provides:
(2) 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, 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 construing these provisions, the Kentucky Supreme Court has declared that "[t]he 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). Violation of the Open Meetings Act, insofar as it relates to "secret meetings," is thus predicated on two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken, and (2) a series of less than quorum meetings attended by members of the agency collectively constituting a quorum and held for the purpose of circumventing the requirements of the Act. Continuing, in Yeoman the Court observed:
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).
Id . Because there is no proof in the record before us that a meeting or series of meetings occurred, or that if a meeting or meetings occurred, a quorum of the Board of Commissioners was present at a single meeting or collectively at a series of less than quorum meetings, we cannot resolve this matter in favor of The State Journal .
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." It is apparently Mr. Lucas' belief that an unpublicized meeting or meetings occurred in the period prior to April 25 at which a quorum of members of the Board discussed Mr. Thompson. Nevertheless, he offers no proof that such a meeting or meetings occurred. In the absence of proof, we cannot assume that a meeting or meetings took place. Compare, 98-OMD-94 and 00-OMD-114 (public agencies whose "secret" meetings were challenged acknowledged that the meetings occurred but defended the meetings on various grounds) 4 and 98-OMD-94 and 00-OMD-114 (complainants personally observed the "secret" meetings in progress); accord, 00-OMD-142, 00-OMD-200 and 02-OMD-83 (because members of city councils who were alleged to have participated in the "secret" meeting or meetings denied that meetings occurred and no witnesses to the alleged meetings came forward to attest to what they saw, Attorney General found insufficient evidence to support claimed violations).
In the alternative, Mr. Lucas apparently believes that members of the Board violated KRS 61.810(2) by meeting in a series of less than quorum meetings in numbers that collectively constituted at a least a quorum to discuss Mr. Thompson but avoid the requirements of the Open Meetings Act. Again, he offers no proof of such meetings, and again we are unable to resolve the factual issue in his favor. In 00-OMD-63, the Attorney General analyzed KRS 61.810(2) in considerable 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. There, we held that a fiscal court violated KRS 61.810(2) based on an unrefuted statement in the record on appeal that was made by the county judge/executive in which he admitted that he had conducted separate meetings with each of the members of the fiscal court to discuss a new jail site and that they had "collectively . . . agree[d]" to a specific course of action. Although we acknowledged our inability to determine whether the members of the fiscal court conducted this series of less than quorum meetings for the purpose of avoiding the requirements of the Open Meetings Act, we concluded that the fiscal court's actions otherwise fell within the prohibition described in KRS 61.810(2). Compare 00-OMD-171 and 00-OMD-200 (because members of city council who were alleged to have engaged in a series of less than quorum meetings denied that meetings occurred, and no evidence of a series of meetings was otherwise presented, Attorney General held that no violation could be established).
Although the circumstances of the April 25 meeting with Mr. Thompson suggest that prior discussions may have occurred between members of the Board, the record before us is devoid of hard evidence supporting Mr. Lucas' allegations. Mayor May flatly denies that a quorum of the commissioners secretly met to discuss Mr. Thompson, or that the commissioners conducted a series of less than quorum meetings to discuss Mr. Thompson for the purpose of avoiding the requirements of the Open Meetings Act. Under these circumstances, we must conclude that the record is insufficient to support the claimed violation. Having said this, we nevertheless remind the Board of Commissioners to avoid discussions which fall within the conduct prohibited by KRS 61.810(2).
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 Commissioner Bowers was apparently the lone dissenter on the issue of the city manager. Mayor May stated that she failed to return his May 15 and 16 telephone calls.
2 Even if specific open meetings violations are alleged and substantiated, the Attorney General is not empowered to void agency action taken at illegal meetings. Pursuant to KRS 61.846(2), the Attorney General is only authorized to "review the complaint and denial and issue within ten days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." The relief Mr. Lucas seeks, specifically that the Board's "decision" "be voided, " is not available through this office.
3 Mr. Lucas states that the Board of Commissioners violated KRS 61.815, establishing requirements for conducting closed sessions, but does not identify the nature of the alleged violation, e.g., inadequate notice to the public in open session in contravention of KRS 61.815(1)(a), failure to make a motion which was carried by a majority in open session in contravention of KRS 61.815(1)(b), taking final action in closed session in contravention of KRS 61.815(1)(c), or discussing matters in closed session that were not publicly announced in open session in contravention of KRS 61.815(1)(d). With reference to the Board of Commissioner's discussion of personnel matters during executive sessions occurring between October 1, 2001 and May 1, 2002, we can identify only one potential violation and that consists of the Board's possible failure to cite the specific exception authorizing the closed session (KRS 61.810(1)(f)) and indicate whether the discussion would focus on either the appointment, or the discipline, or the dismissal of an individual employee. See 97-OMD-110, p. 3 (holding that "[w]hile the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal, or disciplinary action, the public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.") Given the scant information provided to this office, we cannot confirm that the Board committed such a violation.
4 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.