Request By:
Steve Fitch
P. O. Box 970
Pewee Valley, KY 40056Clayton Stoess, Mayor
City of Pewee Valley
P.O. Box 647
Pewee Valley, KY 40056John P. Singler, City Attorney
City of Pewee Valley
200 S. 7th Street
Pewee Valley, KY 40056
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the City of Pewee Valley violated the Open Meetings Act by failing to have a quorum at part of its December 6, 2004 meeting and whether the Master Plan Committee of the City of Pewee Valley is a "public agency" subject to the provision of the Open Meetings Act. For the reasons that follow, we find that insufficient information is presented to conclusively determine whether less than a quorum existed in part of the December 6 meeting and the Master Plan Review Committee is a public agency as defined in KRS 61.805(2)(g) and that it violated the Open Meetings Act by failing to comply with the requirements of the Act.
In an undated letter, Stan Fitch submitted a written complaint to Mayor Clayton Stoess and John Singler, City Attorney, in which he alleged:
The December 2004 city council meeting was held in violation of the Kentucky Revised Statutes Open Meetings Law. The city council failed to maintain a quorum throughout the duration of the meeting. The proposed remedy would be for Mayor to publicly announce the Violation and apologize for the lack of leadership during the council Meeting and agree to abide by the open meetings law going forward.
In a response dated May 18, 2005, Mr. Singler stated that he was unaware of the City Council losing quorum during the city council meeting.
In his letter of appeal, Mr. Fitch explained:
The December meeting began with the Mayor and four council members Present which constitutes a quorum. During the meeting the Mayor and Council went into executive session. During the executive session council member Beach Craigmyle left the meeting leaving the Mayor and three council members present which does not constitute a quorum. Please note the Mayor and three council members continued on with the executive session as well as the normal portion of the meeting after they motioned and came out of executive session. Due to the fact city business was discussed and action was taken after the council failed to maintain a quorum the December 2004 Pewee Valley City Council Meeting was held in violation of KRS 61.805.
In a supplemental response submitted to this office, Mr. Singler advised:
We have gone through the minutes, the roll was called. Four members and a quorum were present at the beginning of the meeting. It is the practice of the City to have individual reports from the members that are present. Those reports were made by the members present on the records and also in the minutes. We have tape recording of the meeting at issue and [it] appears that at all times during the business meeting there was a quorum present. (See Attached Exhibit Four). I have listened to the meeting and can identify each of the four members making the quorum present and speaking on the tape throughout. Therefore, my response to Mr. Finch was simply that we were unaware of there not being a quorum present during the business session of this meeting and do not understand why he is bringing this up and I did not see a violation of the open meeting law.
On this issue, Mr. Singler summed up the City's position:
Finally, the December, 2004 City Council meeting minutes show a quorum was present and the tape recording of this meeting shows that a quorum was present during the business session of the meeting. As I told Mr. Fitch, I am unaware of any open meetings violation in regard to the December, 2004 City Council Meeting.
Mr. Finch alleges that council member Craigmyle left the executive session, leaving the council without a quorum. The City states that a quorum was present during the business portion of the meeting and that the minutes and tape of the meeting support this fact. We have reviewed the record before us, including the tape and the minutes, and conclude that there is insufficient information presented for us to conclusively resolve this issue. If, in fact, the Council was left with less than a quorum, then it was left without authority to act. Moreover, KRS 61.815(1)(c) provides that "[n]o final action may be taken in closed session. " Thus, even with a quorum in the closed session no final action could have been taken. Finally, although the Open Meetings Act does not establish rules of procedure relating to the conduct of meetings, many public agencies adopt those rules promulgated in Robert's Rules of Order or some other manual of parliamentary procedure. Robert's Rules of Order states that the only action that can be legally taken in the absence of a quorum is to fix the time to adjourn, adjourn, recess, or take measure to obtain a quorum. Robert's Rules of Order , Newly Revised (10th ed.), p. 336, 337.
We next address the issue as to whether the Master Plan Review Committee of the City is a "public agency. " In undated letters, Mr. Fitch submitted a written complaint to Mayor Clayton Stoess and John Singler, City Attorney, in which he alleged that the Committee was a public agency and violated the Open Meetings Act by failing to take minutes of its meetings and that at some of its meetings the Committee failed to have a quorum. As a remedy, he proposed that due to the fact that the meetings were held in violation of the Act all Committee action shall be considered void and the Mayor should apologize to the residents of Pewee Valley and agree to follow the open meetings law in the future.
Along with his response to the letter of appeal, Mr. Singler provided a copy of his May 18, 2005 letter to Mr. Fitch in which he advised him that the Master Plan Review Committee was an informational citizen's committee, which simply issued a report to the City Council and he saw no violation of the open meetings law and none was intended.
In his response to this office, Mr. Singler further addressed the issue as to whether the Committee was a public agency, summarizing in part:
As detailed above, the Master Plan Committee was an informational gathering committee and therefore, there was no action taken to record in official minutes. Additionally, the sum total of all information gathered and discussed and distributed and conclusions thereon, was recorded in extreme detail in the final report of Pewee Valley Master Plan Review Committee dated September, 2004. That was distributed widely throughout the City, Mr. Fitch, the news media's, and also disclosed in a power point presentation to a packed house, in detail at a regular City meeting.
For the reasons that follow, we find that, pursuant to KRS 61.805(2)(g), 1 the Pewee Valley Master Plan Review Committee is a public agency for purposes of the Open Meetings Act and its failure to comply with KRS 61.835 by taking minutes of its meetings constituted a violation of the Act.
KRS 61.805(2)(g) defines the term public agency as:
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection[.]
The City of Pewee Valley is a public agency within the meaning of KRS 61.805(2)(c), and any committee established, created, and controlled by it is a public agency pursuant to KRS 61.805(2)(g). See, e.g., Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that the presidential search committee created by action of the Board of Trustees of the University of Kentucky, a public agency created by statute, is itself a public agency) ; OAG 91-54 (holding that a committee created by the Mercer County Fiscal Court to consider proposals relating to planning and zoning is a public agency) ; 93-OMD-49 (holding that a three member grievance committee appointed by the Mayor of the City of Scottsville is a public agency) ; 95-OMD-124 (holding that an emergency medical services committee appointed by the Boyle County Judge/Executive is a public agency) ; 99-OMD-77 (budget committee appointed by Franklin County Fiscal Court is a public agency pursuant to KRS 61.805(2)(g) as an advisory committee established, created, and controlled by a public agency) ; and 98-OMD-96 (holding that a sign committee created by the City of Madisonville zoning administrator is a public agency) .
The minutes of the Pewee Valley City Council, published in the City's May, 2003, newsletter, "The Call of Pewee," (attached as Exhibit Two, in Mr. Singler's response), indicate that upon Mayor Stoess' recommendation, the City Council created the Master Plan Review Committee, appointing certain residents of Pewee Valley to be its members. Established, created, and controlled by the Pewee Valley City Council, the Committee is, as noted above, a public agency as defined at KRS 61.805(2)(g), and meetings of the committee are required to conform to the requirements of the Open Meetings Act. Our conclusion is not altered by the fact that the committee is not empowered to take action but instead operates in an advisory capacity.
By its express language KRS 61.805(2)(g) applies to advisory committees established, created, and controlled by a public agency. Consistent with this provision, KRS 61.810(1) states:
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 . . . [.]
(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. We believe that the reasoning of that decision extends to the present appeal. The Master Plan Review Committee played a role in the formation of public policy. Its meetings and discussions of public business were subject to the requirements of the Open Meetings Act notwithstanding the fact that it did not have authority to act. See, e.g., Presidential Search Committee , above, OAG 89-25; OAG 91-54; 98-OMD-96.
Accordingly, we find that the Master Planning Review Committee's failure to comply with the requirements of KRS 61.835 constituted a violation of the Open Meetings Act. That statute provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
It is the opinion of this office that the Committee was obligated to record minutes of all meetings of a quorum of its members at which public business was discussed. 2 See, 98-OMD-94; 99-OMD-77; 99-OMD-117. The requirement that the agency record minutes of its meetings is triggered regardless of whether action is taken at the meeting. At a minimum, the minutes should reflect that the meeting was convened, the minutes of the last meeting approved, and the meeting was adjourned. 99-OMD-166, p. 5. In the interest of maximizing notice of public agency meetings, and what transpired at those meetings, the Committee should have recorded minutes of its meetings, and its failure to do so constituted a violation of the Open Meetings Act. 3
In his undated letter of appeal, Mr. Fitch alleges the City had not timely responded to an open records request and open meetings complaint letters he alleges were sent to the City on February 11, 2005.
After receipt of the Notification of the appeal, Mr. Singler provided this office with a response to the issues raised in the appeal. In his response, he advised that as to this issue, that none of the correspondence provided by Mr. Fitch was dated February 11, 2005 and often times because there is no date or addresses on Mr. Fitch's requests there is no way to track "who got what, when." Mr. Singler stated it was his policy to timely respond to requests within three days after their receipt. He also provided a copy of his May 18, 2005 letter to Mr. Fitch, in which he responded to his open meetings complaint, as noted above, advising him that the Master Plan Review Committee was an informational citizen's committee, which simply issued a report to the City Council and he saw no violation of the open meetings law and none was intended. As to this issue, we have insufficient information concerning the dates complaints were sent and dates the agency received them to resolve this issue. See 03-ORD-061. Moreover, because this office is not empowered to review omissions in open records production in the context of an open meetings appeal, we do not address Mr. Fitch's open records claim.
Finally, the Attorney General is not empowered to invalidate or void actions taken by public agencies in the course, or as a consequence, of a meeting which does not conform to the requirements of the Open Meetings Act. Our review under KRS 61.846(2) is confined to a determination whether the Committee violated the provisions of KRS 61.805 to 61.850. Based on our review of the record before us, we conclude that its failure to keep minutes of its meetings constituted a violation of KRS 61.835 .
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.
Footnotes
Footnotes
1 The Master Plan Committee may also be characterized as a public agency as defined in KRS 61.805(2)(e) (as "a body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act" and as defined in KRS 61.805(2)(f) (as "any entity where a majority of its governing body is appointed by a public agency, member or employee of a public agency, a state or local officer, or any combination thereof").
2 At meetings of the Committee in which there was not a quorum there was no legal meeting and thus no requirement that minutes be kept. See 94-OMD-63.
3 However, the record before us indicates the meetings were run in an open public forum, meetings were announced in advance, notice of the meetings were posted in the "The Call of Pewee" city newsletter, and the public was invited and did attend the meetings regularly.