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 Pewee Valley City Council violated the Open Meetings Act at its October 7, 2002, regular meeting when it permitted one of its members who was not physically present to be counted as part of the quorum, necessary to proceed with the meeting, by means of a speaker phone that was audible to members of the public in attendance. Based on existing legal authority, which clearly "disfavors electronic participation in lieu of physical presence, " the language of the Act itself, and its underlying legislative intent, we find that the absent member could not be counted as part of the quorum, and that the decision to permit him to be so counted constituted a violation of the Open Meetings Act.
On October 9, 2002, Stan Fitch submitted a written complaint to Mayor Jim Kincer in which he alleged that the October 7 meeting was illegal because a quorum of the council members was not present. He complained:
I attended the City Council meeting in which you along with the City Attorney, Mr. Stewart, were also present. In addition, Council members Marguart, Fuqua and Johnson were present. Not in attendance were Schimpler, Noffke and Smith. However, Mr. Smith did participate by way of cellular phone with speaker capacity.
It was Mr. Fitch's position that Mr. Smith's "participation by cell phone does not meet the KRS which clearly states the Council Members must be present." As a means of remedying the alleged violation, Mr. Fitch proposed that the Council "[a]cknowledge the meeting was held in violation of KRS" and "[a]pologize to the citizens of Pewee Valley . . . ."
In a response dated October 15, 2002, Mayor Kincer denied the allegations contained in Mr. Fitch's complaint. He reasoned:
The purpose of the Open Meetings law is to prevent the public's business from being conducted in private. (OAG 78-571).
Your concern does not appear to be that a quorum was not present, unless it is determined that Mr. Smith's appearance at the meeting, by way of telephone conference, was illegal. The participation of Mr. Smith in this meeting was not conducted in private and therefore, was not illegal. His voice was made clearly available to all who were present at City Hall, including you. This gathering at City Hall, on October 7, 2002, was an Open Meeting, and Mr. Smith's participation by telephone conference was clearly sufficient to afford you, and all present at the meeting, an opportunity to hear Mr. Smith's statements at the meeting.
(Emphasis in original.) In sum, Mayor Kincer concluded, "[t]his action simply did not constitute a 'private' or 'illegal' meeting in violation of the Open Meetings Act. " This appeal followed.
In supplemental correspondence directed to this office following commencement of Mr. Fitch's appeal, Pewee Valley City Attorney John Frith Stewart amplified on the council's position. Relying on the broadly worded definition of the term "presence" that appears in Webster's Third New International Dictionary (2002), the council maintained that "presence" "clearly encompasses a very wide range of possibilities," including "being within . . . call" and "in a place being thought of." Continuing, the council attempted to distinguish or refute the legal authority upon which Mr. Fitch relied, restricting this office's opinion in OAG 97-37, wherein we opined that a member of the General Assembly could not be counted as part of a quorum or vote by telephone to members of that legislative body. Additionally, the council characterized this office's opinion in OAG 92-151, wherein we opined that there is no statute authorizing an agency to conduct public meetings "by telephone even if the telephone meeting involves a conference call with a speaker system," and referencing supporting Attorney General's opinions dating back to 1978 1 as well as supporting caselaw, as "merely obiter dicta and, therefore, not controlling." In closing, the council urged the Attorney General to apply a rule of liberal statutory construction in determining the outcome of this appeal, reasoning:
[I]t is not an exception to the Open Meetings Law that the City seeks to have recognized here. Quite simply, this meeting was a type of "gathering" pursuant to the statute. [Footnote omitted.]
Since it is not an exception that is being relied upon by the City, this matter is to be governed by the principle of liberal statutory construction. "[L]aws are to be liberally construed when necessary to reach a substantially correct result[.]" [Footnote omitted.] The Open Meetings Law defines "meeting" in a very broad sense - "all gatherings of every kind." As such Smith's participation in this meeting was part of a gathering and should, therefore, be considered a valid participation under the Open Meetings Law. This is especially true since Smith's participation in this meeting was not private, but rather, was open and obvious to all who were present.
Respectfully, we disagree.
To begin, we are guided not by the principle of liberal statutory construction but instead by the rule of strict construction which our courts have applied to open meetings disputes on at least two occasions, recognizing that "[t]he 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. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990). So guided, we find that because the challenged meeting was "a type of 'gathering' pursuant to the statute," the Pewee Valley City Council was obligated to adhere to the established line of precedent "disfavor [ing] electronic participation in lieu of physical presence, " OAG 97-37, p. 1, and determining that an absent member cannot be counted as part of a quorum notwithstanding the fact that he or she is constructively present by audio connection.
With regard to existing legal authority, we will not unnecessarily lengthen this decision with a recapitulation thereof except to note that from the earliest days of its enactment, our courts recognized that the Open Meetings Act "is designed to require governmental agencies to conduct the public's business in such a way that the deliberations and decisions are accomplished in an atmosphere wherein the public and the media may be present." Jefferson County Board of Education v. Courier-Journal and Louisville Times Co., Ky., 554 S.W.2d 72, 73 (1977). On this basis, the Kentucky Supreme Court later affirmed a trial court's decision to void telephone votes of a public agency. Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Co., Ky., 554 S.W.2d 72, 73 (1977). Although the Pewee Valley City Council may take issue with the paucity of reasoning set forth in these decisions, they represent established precedent by which the council in conducting its meetings, and this office in resolving open meetings disputes, are clearly bound. Further, we note that the legal authorities relied upon in OAG 97-37 and OAG 92-151 arose from open meetings disputes involving both state and local government agencies, and the council's arguments that the former opinion prohibits only absent members of the General Assembly from being counted as part of a quorum, and that the latter opinion is "not controlling on the question presented, " are therefore unpersuasive. Significantly, OAG 92-151 was cited with approval for the principle that there is no statutory authority for an agency to conduct a public meeting by telephone in 92-OMD-1688, a legally binding open records decision of this office issued pursuant to KRS 61.846(2).
At page 1 of OAG 92-151, the Attorney General observed:
The Open Meetings Act was substantially amended by the 1992 Regular Session of the Kentucky General Assembly. Neither in the Act as amended in 1992 or in any of the years since its original enactment in 1974 is there any section specifically authorizing any kind of public meeting by telephone or even dealing with that subject.
However, in 1994 the Open Meetings Act was amended to authorize video teleconferencing of meetings. KRS 61.826 thus provides:
(1) A public agency may conduct any meeting, other than a closed session, through video teleconference.
(2) Notice of a video teleconference shall comply with the requirements of KRS 61.820 or 61.823 as appropriate. In addition, the notice of a video teleconference shall:
(3) The same procedures with regard to participation, distribution of materials, and other matters shall apply in all video teleconference location.
(4) Any interruption in the video or audio broadcast of a video teleconference at any location shall result in the suspension of the video teleconference until the broadcast is restored.
(Emphasis added.) In amending the law in this fashion, the General Assembly reaffirmed the right of the public to both hear and see a quorum of the members of a public agency discuss public business or take action, expressly defining the term "video teleconference" as "one (1) meeting, occurring in two (2) or more locations, where individuals can see and hear each other by means of video and audio equipment," KRS 61.805(5), and implicitly rejecting the notion of audio (telephonic ) participation alone. (Emphasis added.) Simply stated, the right of the public to observe the demeanor of agency members is corollary to the right to hear their comments.
It is for this reason, finally, that we believe that an absent member cannot be counted as part of a quorum. Although the record before us does not reflect whether Councilmember Smith voted at the October 7 meeting, we find, by logical extension, that an absent member cannot vote though he or she is constructively present by audio connection. With this decision, we give deference to the overwhelming weight of legal authority and the recognition that "the right of the public to be informed transcends any loss of efficiency." Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987).
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.
Footnotes
Footnotes
1 See, for example, OAG 78-808, OAG 80-426, and OAG 82-179, each declaring that an open and public meeting cannot be conducted by telephone conference call.