Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Hazel violated the Open Meetings Act when a quorum of its commissioners remained at the City Hall meeting room following the conclusion of its April 4, 2005 regular meeting. 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 a violation of the Act. We do, however, find that the City's failure to respond to the complainant's open meetings complaint constituted a procedural violation of KRS 61.846(1).
On April 15, 2005, Ray Gough, Jill Givins, and Pat Armstrong submitted a written complaint to Mayor Harold Pittman in which they alleged that four commissioners of the City of Hazel remained at the City Hall meeting room, following the adjournment of the City's regular meeting, in contravention of KRS 61.810(1) . Complainants expressed the belief that the commissioners held a meeting in private and had "been discussing issues among themselves privately and with the consultant that attended 04/04/2005." As a means of remedying the alleged violation, they proposed:
. . . that all aspects of the conversation that took place be posted in The Murray Ledger & Times newspaper for the public to be informed about what was discussed. To make it clear as a remedy it shall be stated in the paper that the Hazel City commissioners met in private which was a violation of The Open Meetings Act and that they wish to post the entire conversation on the meeting for the public. We ask that the posting be accurate as to what was discussed in all aspects regardless of content.
Having received no response to their complaint, the complainants initiated an open meetings appeal to this office on May 2, 2005, again expressing the belief that "that all four Hazel City commissioners were meeting privately after the regular meeting was adjourned in violation of the Kentucky Open Meetings Act. " In addition, they enclosed a copy of a video tape, explaining:
You will find that the tape shows the end of the regular meeting where they adjourned and then small talked for a few minutes. You will see the Mayor and newspaper reporter leave and the others are getting ready to leave. Ray Gough the video camera man packs up and leaves. You will then see the video camera man Ray Gough going back over to city hall which was about 10 minutes later and being told "this is no longer a public meeting" by one commissioner Nancy Mieure. You will see the commissioners leave in a huff because our camera re-entered the "private meeting."
In a response dated May 6, 2005, Trevor H. Coleman, attorney, submitted a response, on behalf of the City, to the allegations in the complaint and letter of appeal. In his response, Mr. Coleman, in relevant part stated:
3. Even assuming the complaint or request to comply with KRS 61.846(1) of 61.880(1), it is clear from the document submitted by the appellants that the meeting scheduled for April 4, 2005 was adjourned. Nothing in the Kentucky Revised Statutes, or any Attorney General's Opinion anywhere, prohibits individuals from talking about their own private matters after a public meeting is held. The intent of the statute(s) in question is to eliminate an agency from privately taking action, or making decisions, that pertain to the public without the public's knowledge. The intent is not to prohibit one from discussing after a meeting is adjourned, the weather, the stock market, sports, etc. The stated policy of the statute is that? "the formation of public policy is public business and shall not be conducted in secret. .." KRS 61.800. Public policy was not discussed nor formed after the regularly scheduled meeting. As such the statute has not been violated.
4. The commissioners in question, and the mayor as noted, properly adjourned the public meeting held on April 4, 2005. Any discussions they had after the meeting adjourned pertained to their individual and private affairs and, as such, are not covered by the Kentucky Open Meetings Act or Kentucky Open Records Act. The commissioners, by the appellants own admission, stated that the meeting was over and had been properly adjourned. The appellants were even told the subject matter of the post meeting discussions, I.E., Kroger. Bearing this in mind, the reply to the letter of the appellants is that nothing exists to be turned over or revealed.
Complainants assert that the City commissioners held a private meeting to discuss public business. The City's position is that the discussions the commissioners had after the properly adjourned meeting "pertained to their individual and private affairs" and they were talking about "Kroger," when the camera man entered the room. 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 City commissioners violated the Open Meeting Act.
KRS 61.810(1) 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.
In
Yeoman v. Commonwealth of Kentucky Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), the Kentucky Supreme Court addressed the issue of a quorum of members being in the same place and the same time and whether such a gathering constituted a violation of the Open Meetings Act, stating:
Under the Open Meetings Act ("Act"), KRS § 61.800 et seq., "[a]ll meetings of a quorum of the members of a 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 . . . ."
?
To guide this Court in interpreting the Act is the legislative statement of policy, KRS § 61.800, which states that "the formulation of public policy is public business and shall not be conducted in secret. " And that the exceptions to the Act are to be "strictly [and narrowly] construed."
?
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 of a violation of the Act.
For a meeting to take place within the meaning of the [A]ct, 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 requirement of the Act. KRS § 61.810(2). . . .
In 01-OMD-30, this office addressed the Yeoman decision and prior decisions of the Attorney General on this same issue, offering this discussion:
The Supreme Court's decision in Yeoman synthesizes some twenty-six years of open meetings decisions issued by the Kentucky Attorney General under a general grant of authority prior to 1992, and a specific grant of authority after 1992. 1 In 1978, for example, the Attorney General stated that a quorum of the members of a public agency may attend a professional or social event, such as a convention sponsored by an entity other than the agency itself, without triggering the requirements of the Open Meetings Act. OAG 78-634. Elaborating on this view, in 95-OMD-136 the Attorney General held that Kentucky law does not require "a conclusion that attendance of a quorum of the members of a public body at a convention or conference organized by someone other than the public agency constitutes a meeting of the public agency. " Nevertheless, this office admonished that agency members "attending such a convention or meeting are not authorized to take action affecting [the agency they represent] nor are they permitted to discuss matters directly affecting their [agency]." 95-OMD-136, p. 3. Finally, in 00-OMD-147, the Attorney General found that no violation of the Open Meetings Act occurred notwithstanding the fact that a quorum of the members of the council met at a local restaurant after the meeting. Critical to our decision were the sworn statements of the council members that public business was not discussed, and the lack of evidence to controvert these statements.
Conversely, in a series of decisions also dating back to 1978 the Attorney General has recognized that even a casual gathering of a quorum of the members of a public agency triggers the requirements of the Open Meetings Act if public business is discussed or action is taken. OAG 78-411. Thus, in OAG 80-81 we stated that a city council violated the Act when a quorum of its members met before a regular meeting and decided among themselves how they would vote on a matter subsequently brought before the council at the meeting. Similarly, in OAG 83-102 we held that an agency "committee" comprised of a quorum of the agency's members, along with several others, could not discuss the agency's business in private, reasoning:
OAG 83-102, p. 3, citing Courier-Journal v. University of Louisville, Ky. App., 596 S.W.2d 374 (1980). In 94-OMD-50 we held that a quorum of the members of a fiscal court violated the Open Meetings Act when they met in the magistrates' office to review matters involving the county. Finally, in 95-OMD-64 the Attorney General concluded that a work session attended by a quorum of the members of a public agency was a public meeting within the Act's contemplation, despite the fact that no action was taken. See also, 99-OMD-213.
We have reviewed the video tape and an affidavit provided by the complainants and they support the contentions that the April 4, 2005 meeting was properly adjourned; that small talk was engaged in after the adjournment; and that when the camera man returned to the City Hall meeting room that the commissioners were sitting around the table and advised him that "this was no longer a public meeting" and "they were talking about Kroger." As the Court in Yeoman, acknowledged: "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 of a violation of the Act." 983 S.W.2d at p. 474. The facts before us are akin to those in 00-OMD-147, where we found that a quorum of the members of the city council that met at a local restaurant after a public meeting did not violate the Open Meetings Act. Important to this decision were statements by council members that public business was not discussed and the lack of evidence to contradict those statements. Because there is no proof in the record that the commissioners discussed public business at the meeting at issue, we cannot resolve this issue in the complainant's favor.
Bearing in mind that a meeting takes place, within the meaning of the Act, if a quorum is present and public business is discussed or action is taken, we find that the record before us is insufficient to sustain a finding that a private meeting was held in which public business was discussed. As noted above, 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 and beliefs in that record preclude us from finding that the City violated the Act in this regard.
We note, in closing, that the City's failure to respond to the April, 15, 2005 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 City failed to issue a written response, and in so doing committed a procedural 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 That grant of authority is codified at KRS 61.846(2).