Opinion
Opinion By: Albert B. Chandler III,Attorney General;Amye Bensenhaver,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Louisville Metro Council Republican Caucus violated the Open Meetings Act in the disposition of Lindsay Zoeller's July 17, 2003 complaint concerning the conduct of its meetings. For the reasons that follow, we find that although the Caucus expressed a willingness to voluntarily comply with the requirements of the Open Meetings Act, it is a public agency within the meaning of KRS 61.805(2)(e), and therefore required to comply with the requirements of the Act.
On July 17, Ms. Zoeller submitted a written complaint to Republican Caucus Chairperson Kelly Downard in which she challenged "the closed-door proceedings of the Republican Caucus. " Specifically, Ms. Zoeller alleged that the Caucus "meets regularly, yet does not provides access or notification to the media and general public about such meetings," and identified the following violations:
. KRS 61.805(2)(e) defines a public agency as "any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government. " Since Section 13 of the Rules of the Metro Council, adopted by the council on January 6th, specifically creates the majority and minority caucuses, these caucuses should be defined as a public agency under state law.
. KRS 61.810 states that, "All meetings of a quorum of the members of any public agency at which public business is discussed or at which any action is taken by the public agency shall be public meetings, open to the public at all times..." As a public agency under state law, meetings of a majority of the Republican Caucus should be open to the public.
. KRS 61.820 states that, "All meetings of all public agencies. ..shall provide for a schedule of regular meetings ...The schedule of regular meetings shall be made available to the public." Through my research, I have been unable to find any record of a schedule for Republican Caucus meetings being provided to the public.
. KRS 61.823 requires that public agencies shall provide notice of any "special meetings." Therefore anytime the Republican Caucus convenes, be it at a regularly schedule time or otherwise, public notice should be given.
She noted that she had contacted the office of the Republican Caucus chairperson on two occasions to inquire about attending Caucus meetings and was told that the meetings are not open to the public. Ms. Zoeller indicated that this, coupled with the Caucus's failure to provide a schedule of regular meetings to the public, precipitated her complaint. She proposed that the Caucus Chair "address and remedy this matter as soon as possible."
In a letter dated July 22, 2003, Mr. Downard responded to Ms. Zoeller's complaint. He extended an invitation to her "to join us at Caucus meetings, which are standing meetings, held at 4 p.m. every Thursday." With reference to her statements concerning telephone calls to his office, Mr. Downard advised Ms. Zoeller that he had "checked with my legislative assistant, and we have no record of having received any messages from you or having spoken with you on this issue." Shortly thereafter, Ms. Zoeller initiated this appeal questioning the sufficiency of the Caucus's response on the following bases:
. It fails to address the issue of whether or not the Republican Caucus acknowledges that it is a public agency that must open its meetings if a majority of its members are present (KRS 61.810).
. It fails to answer my complaint that there has been no notice given to the public regarding regularly scheduled Caucus meetings.
. It fails to address whether the Republican Caucus will post notices when they convene special meetings.
Acknowledging that Mr. Downard invited her to attend the Caucus's meetings, she maintained that his invitation "does not bring the Caucus into compliance with the state's Open Meetings Law," including the requirement of adequate notice of regular and special meetings and the requirement that all meetings of a quorum of the Caucus at which public business is discussed be open to the public at all times.
In supplemental correspondence directed to this office following commencement of Ms. Zoeller's appeal, Mr. Downard amplified on the Republican Caucus's position:
Our meetings have always been held at 4 p.m. Thursdays on the first floor of City Hall. It is our intention to comply with all open meetings requirements, including the notice requirements for regular and special Caucus meetings.
In support, Mr. Downard attached a copy of a "media advisory sent to the media regarding a meeting notice. " 1 He noted that the Caucus has "already had several guests, including a reporter from The Courier-Journal, " but that despite the Caucus's invitation to Ms. Zoeller, she did not attend the July 24 Caucus meeting.
In a letter dated August 5, 2003, Assistant County Attorney Paul V. Guagliardo further elaborated on the Republican Caucus's position. With reference to Ms. Zoeller's allegation that the Caucus failed to acknowledge that it is a public agency that must open its meetings if a majority of its members are present, Mr. Guagliardo observed:
[T]he Republican members of the Metro Caucus do not concede that their Caucus constitutes a public agency under the open meetings law. By definition, they constitute less than a quorum of the Metro Council and can take no action on any matter on behalf of the Metro Council. The Rules of the Louisville Jefferson County Metro Council acknowledge the existence of a majority and minority caucuses but specifically provide that a caucus is not deemed an official part of the council or any committee of the council. However, because the caucuses have been recognized by the Metro Council's rules, the Republican members of the Metro Council agreed to abide by the open meetings requirements and are following open meetings requirements as discussed below.
Mr. Guagliardo characterized Ms. Zoeller's allegation that the Caucus failed to respond to the complaint that no notice had been given to the public regarding regular meetings as "inaccurate," commenting:
Steve Haag, Chief of Staff for the Republican members of the Council, believes that notices were sent out in January announcing the first meetings of the caucuses. The Republican Caucus's regularly scheduled meetings (4:00 pm every Thursday on the first floor of the old City Hall) were announced at the first meeting. However, Mr. Haag reports that he and other council staff members have been unable to locate copies of those notices for either caucus. Please note that the first months of the new merged Metro Government have been somewhat chaotic. In the early weeks of January, several council members and their staffs had no working phones or computers. The email system was not reliable. That notices or copies of communications can't be located or recreated electronically is not surprising under the circumstances.
With reference to Ms. Zoeller's final allegation that the Caucus failed to indicate whether it would post notices when it convenes special meetings, Mr. Guagliardo referenced Mr. Downard's July 31 letter, reaffirmed by Mr. Haag, that the Republican Caucus "intends to comply with all open meetings requirements," including the specific requirement that it give proper notice of special meetings and the requirement that its regular meetings be conducted in an open, public forum.
It is the opinion of this office that the Republican Caucus is a public agency, as that term is defined in KRS 61.805(2)(e), and that "any other holding would clearly thwart the intent of the law." Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987). That statement of intent is set forth at KRS 61.800 which provides that "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." In interpreting this provision, the courts have held that public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny," Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997) since "[t]his is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency." Presidential Search Committee at 886.
KRS 61.805(2)(e) defines the term "public agency" as "[a]ny body created by or pursuant to state or local statute executive order ordinance, resolution, or other legislative act in the legislative or executive branch of government [.]" Section 13 of the Rules of the Louisville/Jefferson County Metro Government addresses "Caucuses, Majority & Minority Caucus Leaders" and provides as follows:
13.02 The members of the Council belonging to each political party shall hold separate caucuses and shall each elect a caucus leader. The caucus leader of the party, which has the allegiance of the greatest number of members of the Council, shall be called the "majority leader. " The caucus leaders of the other parties shall be called "minority leaders. " The election of caucus leaders shall be official upon filing with the clerk a certificate of election signed by the members of the caucus.
It is the opinion of this office that the Republican Caucus of the Louisville Metro Council is a body 2 in the legislative branch of government created by or pursuant 3 to local legislative act, to wit the Rules of the Council, and that as such it is a public agency within the meaning of KRS 61.805(2)(e) notwithstanding the language in Section 13.01 of those Rules to the effect that "No caucus shall be deemed an official part of the council or any committee of the council." It is unrefuted that these rules were adopted by the Council on January 6, 2003, and are, pursuant to Section 11, subject to amendment "by an affirmative vote of a majority of the members of the Council." Accordingly, they constitute a legislative act and the body created pursuant thereto, the Republican Caucus, constitutes a public agency. 4
Our decision is not altered by the fact that the Republican Caucus consists of less than a quorum of the Metro Council. In 99-OMD-77, this office rejected the argument that the Finance and Budget Committee of the Franklin County Fiscal Court was not a public agency for open meetings purposes because it was comprised of less than a quorum of the members of the Fiscal Court. We reasoned:
Inasmuch as the Finance and Budget Committee, standing alone, constitutes a public agency for purposes of the Open Meetings Act, we look not to the total composition of the Fiscal Court to determine the presence of a quorum of the Finance and Budget Committee, but to the total composition of the committee itself. The committee consists of three members of the Fiscal Court. A quorum of the committee is present, and a meeting occurs, when two of its members come together to discuss public business, "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). Such meetings must be opened to the public.
99-OMD-77, p. 4. To hold otherwise would create the anomaly that the Democratic Caucus, consisting of a majority of the members of the Council, is a public agency and therefore strictly governed by the requirements of the Open Meetings Act, while its Republican counterpart is not. Moreover, a contrary conclusion would result in a shifting analysis based on the changing composition of the Council due to the death, resignation, or removal of one or more of its members or due, simply, to the electoral process.
Nor is our conclusion altered by the fact that the Republican Caucus "can take no action on any matter on behalf of the Metro Council." In the open meetings decision referenced above, relating to a finance committee of the fiscal court, this office opined:
KRS 61.810(1) states:
(Emphasis added.) In construing this provision, the Attorney General has observed, "We attached significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'" 98-OMD-94, p. 5. In 98-OMD-94, we recognized that since a quorum of the members of the agency was present and public business was discussed, the agency violated the Open Meetings Act by failing to notify the public about the meeting, and by excluding the public from the meeting. We believe that the reasoning of that decision extends to the present appeal. The Finance and Budget Committee of the Franklin County Fiscal Court plays a role in the formation of public policy. Its meetings are subject to the requirements of the Open Meetings Act notwithstanding the fact that it does not have authority to act. See, e.g., Presidential Search Committee, above, OAG 89-25; OAG 91-54; 98-OMD-96.
99-OMD-77, pp. 4, 5. There can be little doubt that discussions "designed to prepare the members for taking official action" and held for the purpose of "review[ing] public information and discuss[ing] the political ramifications of expected issues [and] anticipated official action" constitute public business 5 insofar as those discussions play a critical role in the formation of public policy. The expansive definition of public agency found at KRS 61.805(2), coupled with the statement of policy found at KRS 61.800, indicate a legislative intent to facilitate the broadest possible access to meetings at which public business is discussed or acted upon. KRS 61.805(2) must be construed with a view to carry out the intent of the General Assembly, and there is "no reasonable basis for excluding [the Republican Caucus of the Louisville Metro Council] from the definition of a public agency. " Frankfort Publishing Co., Inc. v. Kentucky State University, Ky., 834 S.W.2d 681, 682 (1992). Clearly, the Republican Caucus is a public agency within the meaning of KRS 61.805(2)(e) and its meetings are governed by KRS 61.805 to 61.850.
As noted above, the language appearing in section 13.01 of the Rules of the Louisville/Jefferson County Metro Government, which states that "[no caucus shall be deemed an official part of the counsel or any committee of the council," is of no legal effect as it relates to the Caucus's duties under the Open Meetings Act. Just as a local agency "cannot, by ordinance or other device, regulate access to records in a manner which conflicts with the Open Records Law", so too a local agency cannot regulate public meetings in a manner which conflicts with the Open Meetings Law. 01-ORD-63, p. 4; 00-ORD-117; 94-ORD-64; OAG 82-518; OAG 82-435. In enacting both the Open Records and the Open Meetings Laws, the General Assembly has preempted the field in regulating public access to records and meetings. OAG 82-435, p. 2. If the intent of the cited language of Section 13.01 is to relieve the Republican and Democratic Caucuses of the Metro Council of their duty to comply with the requirements of the Open Meetings Act, the language is invalid because it is repugnant to the statutory scheme found at KRS 61.800 , et seq.
It is not sufficient, in our view, that the members of the Republican Caucus have "agreed to abide by the Open Meetings requirements . . . ." Although the Caucus maintains that it is "following Open Meetings requirements," Ms. Zoeller directly challenges this position, noting, for example, that she has been unable to obtain a copy of the Caucus's schedule of regular meetings, required by KRS 61.820. 6 The Caucus acknowledges its inability to produce copies of meeting schedules or notices, attributing their apparent disappearance to the "somewhat chaotic" circumstances that prevailed in the first months of the newly merged Metro Government. 7 Thus, notwithstanding the Caucus's agreement to abide by the law, we find that a significant gap between current practice and the requirements of the law may already exist. Moreoever, future party caucuses may not willingly submit themselves to the requirements of the law. It is for this reason that we must determine the status of the Republican Caucus under the Open Meetings Act, and whether compliance with the Act is voluntary or mandatory. We hold that the Caucus is a public agency for open meetings purposes 8 and that it is legally obligated to comply with the requirements of the Act pursuant to KRS 61.805(2)(e), including, but not limited to, the requirement of adequate notice of regular and special meetings per KRS 61.820 and 61.823, and the requirement that all meetings of a quorum of the Caucus at which public business is discussed by open to the public at all times per KRS 61.810(1).
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.
Lindsay Zoeller2508 Cross Hill CourtApartment 0-30Louisville, KY 40206
Kelly DownardRepublican Caucus ChairmanLouisville Metro Council601 West Jefferson StreetLouisville, KY 40202
Irv MazeJefferson County Attorney600 West Jefferson StreetLouisville, KY 40202
Paul V. GuagliardoAssistant County Attorney444 South 5th StreetLouisville, KY 40202
Footnotes
Footnotes
1 The attachednotice reads as follows:For Immediate ReleaseMedia Contact:July 30, 2003Carla Blanton, 574-1351;777-8662 (cell)
Republican Caucus meeting canceled
The Republican Caucus of the Louisville Metro Council will not meet Thursday.
Republican Caucus meetings will resume Aug. 7. Caucus meetings, which are open to the public, are held at 4 p.m. every Thursday in the small conference room on the first floor of City Hall.
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2 The American Heritage Dictionary, 140 (3rd Ed. 1994) defines the term "caucus" as "a meeting of the local members of a political party" and as "a group within a legislative body." In common parlance, it is both the meeting and the body that meets.
3 The American Heritage Dictionary, 671 (3rd Ed. 1994) defines the term "pursuant" as "in accordance with."
4 The Republican Caucus may also fall within the parameters of KRS 61.805(2)(b) as a "state or local legislative board, commission, and committee." See 93-OMD-63 and 94-OMD-23 (determining that the House Democratic Caucus is a public agency for open meetings purposes).
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5 In Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."
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6 KRS 61.820 provides:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
7 We note that although the issue is not before us on appeal, Series No. L4958 of the Local Government Records Retention Schedule requires public agencies to retain meeting notices and agendas at the agency for one year.
8 The obvious corollary of this holding is that the Democratic Caucus of the Louisville Metro Council is also a public agency for open meetings purposes and its compliance with the Act is therefore mandatory regardless of whether its members constitute a quorum of the Council and whether it has agreed to abide by the requirements of the Open Meetings Act.
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