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 Jeffersonville City Commission violated the Open Meetings Act by conducting a series of unpublicized "casual" meetings on March 3, 4, 5, and 6, 2003, and two inadequately publicized special meetings on January 7 and February 19, 2003. For the reasons that follow, we find that the record before us is insufficient to support the claimed violations. We are not empowered to engage in independent fact-finding or to consider information that does not appear in the record, and the conflicting statements in that record preclude us from finding that the Commission committed the alleged violations. We do, however, find that the Commission's failure to respond to Mr. Wilson's open meetings complaint constituted a violation of KRS 61.846(1).
On April 1, 2003, Leonard Wilson submitted a written complaint to Mayor Richard Henderson in which he alleged that "on March 3rd, 4th, 5th, and 6th, 2003, a quorum of the Commission members had a meeting in violation of the Open Meetings Act. " Additionally, Mr. Wilson alleged that the Commission conducted special meetings on January 7 and February 19, 2003 "without the proper 24 hour prior notice given to the public." Mr. Wilson alleged that in the course of these meetings "action to hire certain people in certain positions was taken in . . . closed session. " In support, he noted that he had attended every Commission meeting since Mayor Henderson was elected, "and even though no action has been taken in the open meeting portion of the Commission meeting, certain persons have been employed and placed on the payroll of the City." As a means of remedying the alleged violations, Mr. Wilson proposed that the Commission "discuss at a future meeting, in an open and public session, those matters that were discussed at the improper meetings of March 3rd, 4th, 5th, and 6th, 2003; and at the improperly called closed sessions of January 7, and February 19, 2003."
In a response dated April 23, 2003, Jeffersonville City Attorney Leah Hawkins denied the allegations in Mr. Wilson's complaint. She explained that during the February 25, 2003 Commission meeting, both the city clerk and water meter reader resigned. Shortly thereafter, the water superintendent resigned. To insure the continued operation of the city office and water system, Ms. Hawkins explained, "[t]he Mayor and various Commissioners volunteered their time during the week of March 3." She denied that a quorum of the members of the Commission was present at the city office during this period and asserted that no meeting was conducted.
With reference to the second allegation in Mr. Wilson's complaint, Ms. Hawkins advised:
The City did conduct special meetings on January 7, 2003 and February 19, 2003. Notices were faxed to the Mt. Sterling Advocate, our local newspaper, the only media agency who had requested to be contacted. During the January 7th meeting, Mr. Leonard Wilson, complaintant [sic] asked why the meeting was not announced on the radio. Therefore, the Mt. Sterling Radio Station, WMST was contacted regarding the February 19th special meeting. Mr. Wilson, complaintant [sic] was present at both special meetings as so noted in the minutes of the special meetings. The City is unable to provide documentation of the posting of the notice of the special meeting due to the fact that the prior City Clerk has resigned and the current clerk cannot locate a copy of the notice. However, it is the Mayor's information and belief that notice was posted at the City Office.
During the January 7, 2003 meeting the Board went into closed session to discuss proposed litigation against the City resulting from failure to pay an excess usage fine to the Montgomery County Water District, and increased tensions between the City of Jeffersonville and Montgomery County Water District if the City continued to deny access to its vault located in Camargo. . . . The City relies on open meetings exception K.R.S. 61.810(1)(c) regarding litigation. Personnel matters were not discussed during the executive session on January 7, 2003. When the Board reconvened in public, the Commission voted to furnish a key to the master meter vault in Camargo to the Montgomery County Water District.
On February 19, 2003 the Board of Commissioners went into executive session to discuss the appointment of Mr. Walter Lee to the position of Certified Water Operator for the City of Jeffersonville and to discuss the issue of Mr. J. C. Meadows' and Mr. Hubert Martin's failure to obtain state water operator certification as required by their job descriptions in the Employment Policies and Procedures for the City of Jeffersonville. The board discussed what measures should be taken with regard [to] the employees on this issue. Mr. Walter Lee's employment was voted upon in open session at a later meeting. The City relies on the exception of KRS 61.810(1)(f) to the open meetings law. No general personnel matters were discussed.
In support of the Commission's position, Ms. Hawkins submitted copies of correspondence relating to the threatened litigation between the City of Jeffersonville and the Montgomery County Water District and the special meeting notice faxed to the Mt. Sterling Advocate on January 6, 2003. She did not submit any supporting documentation pertaining to the February 19 closed session or the notice for the February 19, 2003 special meeting. Nevertheless, we find that with the exception of the Commission's unexplained failure to respond to Mr. Wilson's April 1 open meetings complaint, the Commission complied with the Open Meetings Act in regard to its meetings on January 7 and February 19, 2003.
The general mandate of the Open Meetings 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:
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 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, we cannot resolve this matter in Mr. Wilson's favor.
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. Wilson's belief that an unpublicized meeting or meetings occurred in the period between March 3 and March 6 at which a quorum of members of the Commission discussed public business. 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. Conversely, Ms. Hawkins states that a quorum of the members of the Commission was not present in the City Office at any time and no meetings occurred. 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) and 98-OMD-94 and 00-OMD-114 (complainants personally observed the "secret" meetings in progress); accord, 00-OMD-147, 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). We find that the appeal before us is more closely analogous to the appeals that gave rise to 00-OMD-147, 00-OMD-200 and 02-OMD-83, inasmuch as the Commission denies that meetings occurred and no witnesses to the alleged meeting have presented themselves, and conclude that the record does not support the first of the claimed violations.
Turning to the issue of the adequacy of the notices for the January 7 and February 19th special meetings, we again find that the Commission complied with the Open Meetings Act.
The requirements for holding a special meeting are found at KRS 61.823 and provide, in relevant part:
(2) The presiding officer or a majority of the members of the public agency may call a special meeting.
(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 Open Meetings Act thus imposes precisely defined duties on public agencies to provide written notice of all special meetings. "The express purpose of the Open Meetings Act, " the Kentucky Supreme Court has observed, "is to maximize notice of public meetings and action."
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1979). Failure to comply "with the strict letter of the law in conducting meetings of a public agency violates the public good." Id., citing
E. W. Scripps Co. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990). Underlying these observations is the fundamental principle that "the formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.880.
Based on the response submitted by Ms. Hawkins, we find that the Commission was aware of, and complied with, each of the requirements found at KRS 61.823 prior to the January 7 and February 19 meetings. Ms. Hawkins furnished proof of compliance with these notice requirements for the meeting that occurred on January 7 and explained her inability to produce proof of compliance with the notice requirements for the February 19 meeting, namely the resignation of the city clerk and the Commission's inability to locate the meeting notice. Upon Mr. Wilson's request, and although no written request for notice had been filed, the Commission took the additional step of notifying the Mt. Sterling radio station. Error cannot be imputed to the Commission because these entities apparently elected not, or were unable, to publish notice of the meetings. See 99-OMD-167 (holding that fault could not be assigned to fiscal court when newspaper's failure to print notice of special meeting resulted from apparent facsimile transmission error). Although Mr. Wilson disputes the Commission's position, the only specific proof supporting either parties' position confirms that adequate notice was given. 1
With reference to Mr. Wilson's allegation that the closed session of discussions that occurred during the January 7 and February 19 special meetings were unauthorized, and that action relative to the appointment of a city employee took place in closed session, we find that Ms. Hawkins offers a persuasive defense. Mr. Wilson does not assert that the formalities for going into closed session were not observed, but that the closed session discussions did not fall within the parameters of the exceptions invoked. In response, Ms. Hawkins explains that the January 7 closed session was conducted for the purpose of discussing the threatened litigation by the Montgomery County Water District against the City "resulting from failure to pay an excess usage fine" and the City's refusal to permit "access to its vault located in Carmargo." Based on her explanation, and the supporting documentation she submitted, we find that the "chance of litigation involving the agency [was] more than a remote possibility," 93-OMD-119, pp. 3, 4, cited in 01-OMD-41, p. 7, and that the Commission could therefore "legally and properly invoke the exception set forth in KRS 61.810(1)(c) ." 2 Id. See also,
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997) (holding that "the litigation in question need not be currently pending and may be merely threatened.") Assuming that all legal requirements for conducting a closed session codified at KRS 61.815 were observed, and no contrary claim is made, we affirm the Commission's action.
Similarly, we find that the Commission advanced a sufficient justification for the February 19, closed session "[d]iscussion which might lead to the appointment, discipline, or dismissal of an individual employee. " 3 Ms. Hawkins explains that two topics were discussed in the course of the closed session, the first involving the possible appointment of an individual to the position of Certified Water Operator, and the second involving appropriate measures, presumably including discipline or dismissal, that might be taken against two employees who had not obtained state water operator certification as required by their job descriptions. She affirms that no general personnel matters were discussed. Again, assuming that the Commission observed the formalities for going into closed session to discuss personnel matters, including the requirement that the Commission state whether it intended to discuss possible appointment, or discipline, or dismissal of an individual employee, we find no error in its actions. 99-ORD-133.
With reference to Mr. Wilson's final allegation, we find that the admittedly conflicting record does not support his claim that the Commission took final action on a hiring decision in closed session. Mr. Wilson vaguely infers that "action to hire certain people in certain positions" must have occurred in closed session. Ms. Hawkins specifically responds that "Mr. Walter Lee's employment was voted upon in open session at a later meeting." The parties to this appeal are aware that KRS 61.815(1)(c) prohibits public agencies from taking final action in closed session. The inadequacy of the proof presented once again precludes us from resolving this issue for Mr. Wilson. Having said this, we hasten to note that if the facts do not bear out the Commission's position, the courts are employed to impose penalties as set forth at KRS 61.848(5) and (6) and KRS 61.991(1) on appeal of this decision. In the absence of proof to the contrary, this office must assume the truthfulness of the Commission's assertions.
Although the record before us does not support the other claimed violations, we note, in closing, that the Jeffersonville City Commission's failure to respond to Mr. Wilson's complaint constituted a violation of the Open Meetings Act. KRS 61.846(1) provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint, and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The Commission failed to issue a written response, and in so doing committed a procedural violation of the Open Meetings Act. We urge the Commission to review KRS 61.846(1) to insure that future responses conform to the Open Meetings Act.
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.
Leonard Wilson755 Hwy 213 SouthJeffersonville, KY 40337
Richard Henderson, MayorJeffersonville City HallP.O. Box 127Jeffersonville, KY 40337
Leah N. Hawkins, City AttorneyCity of Jeffersonville29 South Maysville StreetMt. Sterling, KY 40353
Footnotes
Footnotes
1 In support of his position, Mr. Wilson might have, for example, obtained statements from The Mt. Sterling Advocate or WMST Radio that they did not receive written notice of the January 7 and February 19 meeting.
2 KRS 61.810(1)(c) authorizes public agencies to conduct closed session "[d]iscussions of proposed or pending litigation against or on behalf of the public agency. "
3 KRS 61.810(1)(f) provides, in full, that public agencies may conduct closed session:
Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret [.]