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 Shively City Council violated the Open Meetings Act by engaging in a course of improper conduct in advance of the meeting at which the council approved a municipal order awarding a contract to one of two bidders for the community center project. The companion question presented in this appeal is whether the council subverted the intent of the Open Records Act, short of denial of inspection, in requiring inspection of records relating to that contract as a precondition to providing copies of those records. For the reasons that follow, we find no error in the city council's disposition of the records request, but hold that the record on appeal indicates that two of the three elements of the offense described in KRS 61.810(2) occurred in advance of the meeting at which the municipal order awarding the contract was approved.
On April 16, 2003, Richard McDonald submitted a written complaint to Mayor James P. Jenkins in which he alleged that "a meeting held on a Thursday to discuss building contracts with two construction companies (Derrick and Kelly) and follow-up meetings/communications with council members" violated "procedural laws relating to awarding contracts for the City of Shively 1 as well as Open Records/Open Meetings law." As a means of remedying the alleged violation, Mr. McDonald proposed that "all decisions made as a result of this meeting . . . be declared null and void, including the municipal order to award a contract to begin construction." In the same letter, Mr. McDonald requested "a list of persons attending this meeting, the topics discussed at this meeting, the conclusions rendered on behalf of the city, specific topics discussed in phone conversations with council members following this meeting, and any printed documents relating to this meeting including awarded contracts."
By letter dated April 23, 2003, 2 Shively City Attorney Walter L. Cato, Jr., denied the allegations in Mr. McDonald's complaint. He explained:
Your letter is a complaint of violations of the open records, open meetings act and "procedural laws relating to awarding contracts for the City of Shively." The meetings and contract involve the community building project.
In January, 2003, 3 I advised the Mayor that, in my opinion, the city could negotiate a contract with one of the two prior bidders using revised specifications at a reduced contract price to the city. This purpose could be achieved through the procedure outlined in KRS 45A.375.
. . .
Following my advice to the Mayor regarding the implementation of the procedure in KRS 45A.375, the Mayor announced at a regular city council meeting that a meeting would be held with the representatives of the two responsive and responsible bidders. The council members were invited to attend on the date and at the time specified for the meeting. When the meeting occurred, three of the city council members attended. This was not a quorum.
At the next regular meeting of the city council following the above meeting with bidders' representatives, a municipal order was passed awarding the contract to one of the two bidders (Derrick Manufacturing).
Although the meeting with the bidders' representatives was, in my judgment, subject to exceptions provided in the open meetings law, public notice was given of the meeting and all council members were invited to attend. It is my advice to the city that the clerk make available to you for your examination at city hall such records which reflect the identities of the persons attending the meeting, a copy of the municipal order awarding the contract, copies of the contract and any documents following the entry of the municipal order. The municipal order, of course, reflects the "conclusions reached on behalf of the city" as you requested. Specific topics discussed in telephone conversations with individual council members are, I believe, excepted under the open meetings statute.
Shortly thereafter, Mr. McDonald initiated this appeal acknowledging that the meeting with Derrick and Kelly that occurred on Thursday was publicly announced and the council members invited to attend, but noting in addition that the Mayor called at least one of the council members who was unable to attend "and said they would be going with Derrick." He complained that "[t]here were two companies involved and the council did not vote, get a report on the meeting or discuss the municipal order." Nevertheless, he continued,"[a]t the next council meeting, the municipal order to award the contract to Derrick was passed without discussion or explanation." With reference to the purported open records violation, Mr. McDonald questioned the city council's authority to require him to inspect records relating to the contract at city hall as a precondition to receiving copies.
In supplemental correspondence directed to this office following commencement of Mr. McDonald's appeal, Mr. Cato elaborated on the city council's position. He advised:
The issue as to sending copies prior to inspection is, I believe, addressed in OAG 76-375 (blanket requests for information on a particular subject), and OAG 76-375 (as it relates to right to have copies of records being ancillary to the right of inspection and does not stand by itself and a person does not have a right to require a list to be made from public records if the list described does not already exist).
A telephone conversation between two members of a public body should not be considered, in my view, a "meeting" within the definition in KRS 61.805(I) [sic]. Such a conversation would not involve a quorum and would not, therefore, be a meeting under OAG 93-OMD-63 (5/28/93). See also KRS 61.810(2) which states in part:
Mr. Cato did not deny that the Mayor conducted telephone discussions with at least one absent council member following the less than quorum meeting. For this reason, we find that the council engaged in a series of less than quorum meetings where the members attending one or more of the meetings collectively constituted at least a quorum of the members of the council. Having said this, we acknowledge our inability to determine the subjective intent of the meetings' participants relative to purposely avoiding the requirements of the Open Meetings Act.
Although he does not frame his objections with precision, it is apparently Mr. McDonald's belief that the city council violated the Open Meetings Act by discussing the community center contract in a nonpublic meeting that violated KRS 61.810(1) or a series of meetings that violated KRS 61.810(2). 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:
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 interpreting 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).
Although there is no proof in the record before us that a single nonpublic meeting occurred at which a quorum of the Shively City Council members were present, the undisputed allegations in Mr. McDonald's complaint confirm that a series (at least two) meetings of less than a quorum occurred, and that the members attending those meetings collectively constituted a quorum.
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." There is no statutory authority for a public agency to conduct a meeting, which is required to be open, by telephone. Rather, existing legal authority clearly prohibits this practice. See,
Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Co., Ky., 554 S.W.2d 72, 73 (1977) (Kentucky Supreme Court affirms a trial court's decision voiding telephone votes of public agency) ; 02-OMD-153; 94-OMD-87; 93-OMD-20; 92-OMD-1728; OAG 92-151. This is consistent with the judicial recognition that the Open Meetings Act "is designed to require government 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.App., 551 S.W.2d 25, 26 (1977), and the legislative recognition that "the formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.800.
The Shively City Council, consisting of six members, acknowledges a meeting of the Mayor, three council members, and the two responsive bidders, and a second telephone meeting between the Mayor and at least one absent council member, arguing that a telephone conversation between two members of a public agency should not be considered a meeting. We agree that, standing alone, a single telephone conversation between two members of a public agency cannot be said to constitute a violation of the Open Meetings Act. Where, however, that telephonic meeting follows an earlier less than quorum meeting of the members of a public agency, and the members attending one or more of the meetings collectively constitute at least a quorum, here four members of the six member body, that series of less than quorum meetings constitutes a violation of KRS 61.810(2) if the meetings "are held for the purpose of avoiding the requirements of [KRS 61.810(1)]." Following these meetings, and with little or no discussion, the city council approved a municipal order awarding a contract to Derrick Manufacturing at its next regular meeting. We find that the record on appeal confirms two of the three elements 4 of the conduct proscribed in KRS 61.810(2), and that the final sentence of that statute, upon which the city council relies as a defense to its actions, did not authorize a series of less than quorum discussions of the "alternatives to a given issue about which the [council] has the option to take action." Yeoman at 474; see 98-OMD-18; 01-OMD-110.
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. " See also 02-OMD-153; compare 02-OMD-107.
While we again acknowledge our inability to determine the subjective intent of the council members, it is apparent that the issue discussed in this series of less than quorum meetings, namely which of the two bidders for the community center project was best qualified, was public business as that term is defined in Yeoman, above. Regardless of whether the outcome was predetermined, or the council members collectively decided on the outcome, namely the selection of Derrick Manufacturing, we believe that the city council's actions were improper if the intent was to avoid the requirements of KRS 61.810(1). Although there is no empirical means by which this office can determine the council's intention, we find that the Shively City Council's actions offended two of the three elements of KRS 61.810(2).
Turning to the question of records access by means of on-site inspection, we attach a copy of a recent open records decision in which the Attorney General recognized that a requester whose residence and principal place of business are in the county where the records are maintained can be required, pursuant to KRS 61.872(3)(b), to conduct an on-site inspection of records identified in his request as a precondition to receipt of copies. 03-ORD-013 (enclosed); see also 99-ORD-151. Although the authorities upon which Mr. Cato relies are dated, and do not reflect the current interpretation of the agency's obligations under the Open Records Act, we find no error in the Shively City Council's position that Mr McDonald must review responsive records in City Hall before he obtains copies and that it has no obligation to create a record that does not already exist.
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.
Distributed to:
Richard McDonald2239 Peaslee RoadShively, KY 40216-4835
Walter L. Cato, Jr.Cato & Van ArsdaleAttorneys at Law510 Starks BuildingLouisville, KY 40202-2509
James P. Jenkins, MayorCity of ShivelyP.O. Box 16007Louisville, KY 40256-0007
Footnotes
Footnotes
1 We do not address non-open meetings questions relating to the award of contracts by the Shively City Council.
2 Mr. Cato explained that Mr. McDonald's complaint was "stamped as having been received at city hall by Mrs. Jeffries on April 21," thus accounting for the apparent discrepancy in the agency's response time.
3 Neither Mr. McDonald nor Mr. Cato indicate the specific dates on which any of these events occurred.
4 The three elements of the offense described in KRS 61.810(2) are as follows:
(1) a series of less than quorum meetings;
(2) the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency; and
(3) the meetings are held for the purpose of avoiding the requirements of [KRS 61.810(1)].
The record on appeal confirms the occurrence of the first and second of these elements.