Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Lincoln County High School Smaller Learning Communities Committee violated the Open Meetings Act by conducting a meeting to develop a freshman transition strategy prior to the March 22, 2004 meeting of the full committee. 1 For the reasons that follow, we find that the record on appeal does not support the claimed violation.
On March 30, 2004, Keith K. Schillo submitted a written complaint to Lincoln County High School Principal Ty Howard in which he alleged that the twenty-four member Smaller Learning Communities Committee, a subcommittee appointed by the Site Based Council to implement a federal grant at the high school, "engaged in an illegal meeting on March 16, 2004." Mr. Schillo explained:
Discussion during the March 22 meeting revealed that several members of the SLC committee met in anticipation of the March 22 meeting in order to develop a freshmen transition strategy. On March 16, 2004 SLC committee members Tim Whitis (Assistant Principal), Mark Gorton (teacher) and Ms. Sherrie Tarter (counselor) met with Mr. Darrel Story (counselor) to develop a two-house structure for freshmen. At the March 22 meeting, Mr. Gorton presented a detailed summary of this plan, which the SLC committee approved. Since the March 16 meeting was not announced to the public, no minutes were recorded and a decision was made without a quorum of SLC members, it is illegal. Even though the March 22 meeting was held in compliance with the Open Meetings Law, the decisions made during this meeting were based on illegal practices.
As a means of remedying the alleged violation, Mr. Schillo proposed that the SLC Committee "reconvene to develop a comprehensive program for implementing the SLC grant in manner compliant with the Open Meetings Law. "
In a response dated April 2, 2004, Mr. Howard denied the allegations contained in Mr. Schillo's complaint. 2 Citing KRS 61.810(1), he asserted:
The Open Meetings Act defines a public meeting as a quorum of a subject body. The Lincoln County High School SBDM definition (1.0602) of a quorum for a committee meeting is 1/2 of the committee membership. You state in your complaint that four of the twenty-four members of a committee met on March 16, 2004, violating the Open Meetings Act. Because four does not constitute a quorum, I am of the opinion that the Open Meetings Act was not violated.
On April 28, 2004, Mr. Schillo initiated this appeal, arguing that "[t]he members who met on March 16 . . . excluded the majority of [the] SLC Committee from the development of the SLC plan . . . [and] such action is inconsistent with the intent of KRS 61.805-61.850."
In supplemental correspondence directed to this office following commencement of Mr. Schillo's appeal, Lincoln County Superintendent Teresa Wallace amplified on the committee's position. She reiterated that only four of the twenty-four member committee met in advance of the March 30 council meeting, concluding that because no quorum was present no violation of the Open Meetings Act occurred. We agree.
Mr. Schillo's complaint is predicated upon the erroneous belief that a meeting occurs, within the contemplation of KRS 61.810(1), anytime members of a public agency discuss public business. In fact, KRS 61.810(1) expressly 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:
Addressing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, KRS 61.810(2) 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 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).
Because there is no evidence in the record on appeal that a quorum of the members of the committee were present at a single meeting from which the public was excluded, or that the members engaged in a series of less than quorum meetings for the purpose of avoiding the requirements of the Open Meetings Act, we find no violation of the Act.
In 93-OMD-63, the Attorney General determined that a gathering of legislative leaders to discuss a health care reform proposal did not constitute a violation of the Open Meetings Act. At page 3 of the decision, we observed:
Many of the elements of a "meeting" are present in the situation under discussion. The [announcement] indicated that there would be a gathering constituting an informational session. Public business was involved as the matter to be discussed was the health care reform proposal, the matter then pending before the General Assembly.
However, as indicated by KRS 61.810(1), one of the elements necessary to constitute a public meeting is the presence of a quorum. [The presiding officer] has specifically stated that a quorum was not present and nobody has contested or refuted that statement. Thus, if a quorum was not present the meeting in question was not a public meeting under the Open Meetings Act.
We rejected the complainant's alternative argument that the gathering violated KRS 61.810(2), relating to less than quorum meetings, reasoning:
Note that KRS 61.810(2) begins with the phrase "any series of less than quorum meetings." Thus to utilize this exception it must be shown that the public agency is meeting with less than a quorum over a series of meetings to avoid the application of the provisions relating to open and public meetings. In the situation relative to this appeal there has only been one meeting. KRS 61.810(2) is not applicable here.
93-OMD-63, p. 3.
In 93-OMD-20, we determined that no violation of the Open Meetings Law occurred when a public official solicited comments and suggestions from other officials concerning a proposed ordinance, but "no final decisions or commitments were made by anyone . . . relative to the ordinance prior to its consideration by the [public agency] at its [scheduled] meeting . . . ." 93-OMD-20, p. 4. There, we concluded:
We do not believe that the Open Meetings Act prohibits all contacts by and among the members of a public agency outside of an open and public meeting. When, as here, a draft of an ordinance was being prepared for discussion at an open and public meeting and the person preparing the draft merely sought comments and suggestions from the individual [agency] members relative to the terms and provisions of that ordinance, there is no violation of the Open Meetings Act.
Id.; see also, 00-OMD-200, p. 6 ("In the absence of a quorum at a single meeting, or collectively at a series of meetings, 'the meeting in question was not a public meeting under the Open Meetings Act' "); 02-OMD-107 (absence of proof in the record on appeal that a single secret meeting, or series of less than quorum meetings, occurred precluded resolution of open meeting appeal against public agency) .
Here, as in the open meetings decisions cited above, the record is devoid of evidence that a quorum of the members of the Smaller Learning Communities Committee met in advance of the scheduled meeting in contravention of KRS 61.810(1). Although public business, namely the freshman transition strategy, was discussed by four members of the twenty-four member committee, and a proposal formulated, "no final decisions or commitments were made . . . prior to consideration [of the proposal] by the [committee] at its [scheduled] meeting." 93-OMD-20, p. 4. We therefore conclude that the record on appeal does not support the claimed violation of the Open Meetings Act. "Because there was no quorum, there was no meeting." 94-OMD-63, p. 3.
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.
Keith Schillo1800 Brad Petrey RoadWaynesburg, KY 40489
Teresa WallaceSuperintendent305 Danville AvenueP.O. Box 265Stanford, KY 40484
Ty HowardPrincipalLincoln County High School 60 Education WayStanford, KY 40484
Footnotes
Footnotes
1 The agency states that the Site Based Council conducted the meeting at which it accepted the committee's recommendation on March 30, 2004 rather than March 22, 2004.
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2 Mr. Schillo maintains that he did not receive a written response from the committee, the council, or the high school.
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