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 City of Morgantown violated the Open Meetings Act when the Mayor conducted a series of less than quorum telephonic meetings with members of the City Council, collectively constituting a quorum of the agency, to discuss whether the city "would agree . . . to guarantee a loan of $ 130,000 to enable the sale of the Sumitso Building to Epic." Acknowledging that we cannot ascertain the subjective intent of the participants in this series of less than quorum telephone meetings, we find that the meetings otherwise fell within the zone of conduct prohibited by KRS 61.810(2). Given the fact that the Council subsequently voted on the issue of the loan guarantee, we reject the argument that exclusive authority to resolve that issue rested with the Mayor, pursuant to KRS 83A.130(3) and the Mayor-Council form of government under which Morgantown operates, and the assertion that "[t]he Mayor's telephone calls did nothing more than educate the members of the Council concerning Epic's request" and were therefore permissible as "discussions between individual members where the purpose of the discussions [was] to educate the members on specific issues." KRS 61.810(2).
On February 3, 2005, Council members Eva J. Hawes and Harold R. West submitted a written complaint to Mayor Charles Black in which they alleged that on January 2, 2005, Mayor Black contacted the six members of the Morgantown City Council by telephone to ascertain whether they would "agree for the City to guarantee" the $ 130,000 loan to Epic. Citing 02-OMD-153 for the proposition that "a series of telephone calls for the purpose of discussing a matter was a violation of the Open Meetings Act, " they maintained that "the subsequent vote of the City Council on the issue of the loan guarantee is thus faulty." As a means of remedying the alleged violation, Ms. Hawes and Mr. West proposed that the Council "tak[e] another vote on the issue."
On behalf of the City of Morgantown and Mayor Black, attorney David Lanphear responded to the Council members' complaint by letter dated February 9, 2005. Mr. Lanphear stated:
Mayor Black expressly denies that he asked you or other members of the Council to agree to Epic's request. Rather, the purpose of his telephone call was to inform the members of the Council that Epic had inquired whether the City would agree to guarantee Epic's loan to enable it to obtain its financing at a local bank.
It was the Mayor's position that the series of less than quorum telephone meetings "did nothing more than educate the members of the Council concerning Epic's request," and was therefore proper under the concluding sentence of KRS 61.810(2).
Continuing, Mr. Lanphear observed:
Moreover, under the Mayor-Council form of government under which the City of Morgantown operates, the executive authority of the City is exclusively vested in and exercised by the Mayor. KRS 83A.130(3). Additionally, all bonds, notes, contracts and written obligations of the City shall be made and executed by the Mayor. KRS 83A.130(8). The Council is vested with legislative authority, and it is prohibited from performing any executive functions unless expressly assigned by statute. KRS 83A.130(11). Accordingly, if the discussions the Mayor had with Council members were not purely educational, then they were merely advisory.
On this basis, Mr. Lanphear attempted to distinguish 02-OMD-153, upon which the Council members relied, noting that that decision involved a city operating under the commission form of government, pursuant to KRS 83A.140, in which all legislative, executive, and administrative authority is vested in the commission. He likened the facts of their complaint to the facts of the complaint giving rise to 92-OMD-1688. The latter decision involved a mayor-council form of government, a series of telephonic meetings with council members, and a determination by this office that no violation had occurred inasmuch as the mayor "as the head of the executive branch of government, was merely advising and updating the legislative branch. " 92-OMD-1688, p. 2. In sum, the City asserted:
Mayor Black is vested with the exclusive authority to perform the executive functions of the City of Morgantown and is exclusively vested with the authority to make and execute all bonds, notes, contracts and written obligations of the City[.] [H]is discussions with the members of the City Council, even if understood by certain Council members to request an agreement, were nothing more than an effort to update and inform individual members of the Council of the status of his discussions with Epic officials. In essence, no meeting was held as none was required.
Because the issue discussed in the series of less than quorum telephonic meetings conducted by Mayor Black was ultimately put to a vote at a public meeting of the Morgantown City Council, we find that 02-OMD-153, and not 92-OMD-1688, is controlling notwithstanding the differences in the forms of government under which the respective cities operate.
The statute at issue in this appeal has been the subject of a number of open meetings decisions since its enactment in 1992. KRS 61.810(2) provides in full:
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, 1 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 a recent decision, the Attorney General analyzed this provision in depth, observing:
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. "
00-OMD-63, p. 5 (emphasis added).
More importantly, Kentucky's Supreme Court has examined the purposes underlying KRS 61.810(2), and concluded:
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). The 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 meeting requirements of the Act. KRS § 61.810(2).
Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998) (emphasis added). In Yeoman, the Supreme Court held that although a quorum of the members of the state Health Policy Board were present at a national health care conference, the appellant's claim of an open meetings violation was devoid of merit since "the mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim . . . ." Id.; compare, 00-OMD-63 (holding that series of less than a quorum meetings with county judge/executive to discuss possible jail site fell within the zone of conduct prohibited by KRS 61.810(2)); 98-OMD-18 (holding that KRS 61.810(2) did not authorize "informal" meeting of newly appointed water district commissioners with commissioners from merged water district where quorum of members of district were present and public business was discussed, notwithstanding claim that a meeting was held only for the purpose of educating new members).
The complainants in this appeal cite 02-OMD-153 in support of their position that the City violated KRS 61.810(2) by conducting a series of less than quorum telephonic meetings with the members of the Council to discuss public business. In that decision, we held that because the City of Smith's Grove operated under a commission form of government, all legislative, executive, and administrative authority was vested in the City Commission pursuant to KRS 83A.140(3), including the authority to hire and fire city employees, and:
the series of less than quorum discussions of [an employee's] . . . status between the Mayor and the Commission members was a discussion of public business, meaning a discussion of the various alternatives to a given issue about which the Commission had the option to take action, and not merely an update from the Mayor on "the actions [he] had taken . . . ."
02-OMD-153, p. 9. We concluded that the Mayor "did not enjoy exclusive authority to hire and fire [the employee] and his telephone discussions with members of the City Commission did not constitute a mere update. " Id. at 10.
The City of Morgantown responds that the facts giving rise to this appeal are more closely akin to the facts giving rise to this office's decision in 92-OMD-1688, an appeal that involved a city operating under a mayor-council form of government in which broad administrative powers are reposed in the mayor, including administration and implementation of an adopted budget ordinance. There, the complainant alleged that a telephone vote of City Council members taken by a city employee, at the Mayor's request, led to the purchase of paper recycling equipment in contravention of the Open Meetings Act. We found no violation, opining:
At the point in the purchase of the recycling equipment with which this appeal is concerned the mayor and the executive department of the city were proceeding pursuant to authority conferred upon them by the budget ordinance in the form of an appropriation by the city council. No meeting was held as none was required at this time and thus the provisions of the Open Meetings Act are not applicable. The mayor, as the head of the executive branch of government, was merely advising and updating the legislative branch on the proceedings undertaken pursuant to the budget appropriation. In meeting the statutory obligation imposed upon the Attorney General under KRS 61.846(2) to determine if the public agency violated the Open Meetings Act, it is our decision that the city . . . did not violate the Act with regard to the telephone calls made under the mayor's direction to the members of the city council concerning the recycling equipment.
92-OMD-1688, p. 3.
As in 92-OMD-1688, the City of Morgantown operates under a councilmanic form of government wherein broad administrative powers are vested in the Mayor. Nevertheless, it is unrefuted that the Morgantown City Council voted on the issue of the loan guarantee at a regular meeting conducted after these contested telephonic discussions took place. This is the critical fact that renders 92-OMD-1688 inapposite. The assertion that Mayor Black was vested with exclusive authority to commit the City to guarantee the loan is inconsistent with action by the City's legislative body. For this reason, the instant appeal is analogous to 02-OMD-153 in which we determined that because the issue discussed in the series of less than quorum telephonic meetings was an "issue about which the [agency] had the option to take action," and therefore constituted "public business, " within the meaning of Yeoman v. Commonwealth, above, those discussions could not be properly characterized as an "update from the Mayor." It is for the same reason that we find that Mayor Black's discussions with the Council members cannot be properly characterized as "informational," "educational, " or "advisory. " By voting on the loan guarantee issue, the Morgantown City Council exercised its option to take action on that issue, which, perforce, must be characterized as public business. The series of less than quorum private discussions which preceded the vote therefore fell within the zone of conduct prohibited by KRS 61.810(2). As before, we acknowledge our inability to determine the subjective intent of the participants in this series of telephonic meetings, but otherwise conclude that the meetings constituted a violation of 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 proceedings.
Footnotes
Footnotes
1 Providing that "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 . . . ."