Request By:
Ivor Chodowski
President
Community Farm Alliance
614 Shelby Street
Frankfort, KY 40601Keith Rogers
Chief Executive Officer
Agricultural Development Fund
404 Ann Street
Frankfort, KY 40601Catherine H. Ball
General Counsel
Governor's Office of Agricultural Policy
404 Ann Street
Frankfort, KY 40601
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 Governor's Office of Agricultural Policy violated the Open Meetings Act by conducting seven of an anticipated eleven unpublicized roundtable discussions across the state with members of county agricultural development councils and county extension agents to discuss "the operations and future of the Agricultural Development Fund." We find that although the matters discussed during these discussions were clearly of public interest, the record is devoid of proof that a quorum of the members of GOAP or its governing body, the Agricultural Development Board, was present at any of the discussions, and that therefore KRS 61.810(1) did not require that the discussions be open to the public.
On July 11, 2005, Ivor Chodowski, President of Community Farm Alliance, submitted a written complaint to Keith L. Rogers, Executive Director of the Governor's Office of Agricultural Policy, in which he alleged the GOAP violated the Open Meetings Act by refusing to release a schedule of, and agenda for, the referenced roundtable discussions, and by conducting closed meetings without first observing the formalities for conducting such meetings set forth at KRS 61.815. As a means of remedying the alleged violations, Mr. Chodowski proposed that GOAP "release the schedule for the meetings, the agenda, and also the minutes from any meetings that may have already been held," and that it "follow the guidelines set forth in . . . KRS 61.815" before conducting any more closed meetings. Having received no response to his complaint, Mr. Chodowski initiated this appeal on July 15, 2005, 1 on behalf of Community Farm Alliance.
In correspondence directed to this office following commencement of the Alliance's appeal, GOAP denied the allegations contained in Mr. Chodowski's complaint. On behalf of GOAP, Mr. Rogers explained that the regional roundtable discussions hosted by GOAP that are the subject of this appeal:
are an opportunity for GOAP staff and the county leadership of the agricultural development program to discuss the operations and future of the Agricultural Development Fund (ADF).
Invitations to the roundtable discussions have been sent to members of the county agricultural development councils and county extension agents. Members of the State Agricultural Development Board (ADB) have not participated in these meetings, and were not provided written invitations. At the June board meeting, ADB members were informed that staff would be hosting the regional roundtable discussions.
Eleven regional roundtable discussions have been scheduled for this summer. The goal of the roundtables is to hear from county leaders about all aspects of county programs and the ADF as we begin this falls planning process. At this time seven have taken place and four are scheduled for August. For each of the roundtables, we select a central location ad invite eight to fourteen counties to participate. Attendance at the first seven has been from six to nineteen people.
Continuing, Mr. Rogers advised that neither a formal agenda nor minutes exist for these discussions, and that the discussions result in no formal action or formal recommendations to ADB. Noting that the roundtable discussions are not restricted to invited council members and extension agents, and that others are welcomed to attend, Mr. Rogers nevertheless expressed the belief that the roundtable discussions are not subject to the Open Meetings Act and that therefore GOAP is not required to publicize the meetings. We agree.
The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), states 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, 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).
Yeoman at 474. Because there is no evidence in the record on appeal that a quorum of the members of GOAP or ADB were present at a single meeting from which the public was excluded, or that members of either agency 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; 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) .
KRS 248.707 establishes the Agricultural Development Board "to perform essential governmental and public functions by administering funds to provide economic assistance to the agriculture community of the Commonwealth." KRS 248.707(1). Mr. Rogers advises that none of its members were present at the challenged roundtable meetings. As we understand it, the Governor's Office of Agricultural Policy is the executive branch agency that provides administrative support to ADB in relation to the Agricultural Development Fund. There is insufficient evidence in the record on appeal to support the presence of a quorum of its members at the challenged roundtable meetings. Moreover, although the matters discussed at these meetings were clearly of interest to the public, and especially Community Farm Alliance, it is not altogether clear that those matters could properly be characterized as GOAP's "public business, " as defined in Yeoman above, insofar as it is ADB, and not GOAP, that "has the option to take action" by approving or rejecting applications for funds. Leaving this issue aside, we find that in the absence of a quorum of the members of these agencies, the roundtable discussions hosted by GOAP are not subject to KRS 61.810(1). In the spirit of maximizing notice of these roundtable discussions, GOAP may, but is not required to, publicize upcoming discussions. It is not statutorily obligated to create an agenda for, or maintain minutes of, these discussions, but again may do so as a matter of discretion. 2
In his letter of appeal, Mr. Chodowski asserts that a quorum of at least one county agricultural development council was present at one of these meetings. Under the rule of law announced in Yeoman , above, this fact standing alone would not constitute a violation of the Open Meetings Act. There, the Supreme Court held that "[t]he 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 violation of the Act." Yeoman at 474. So too, this office has expressly recognized that a quorum of the members of a public agency may attend a professional or social event, such as a convention or conference sponsored by an entity other than the agency itself, without triggering the requirements of the Open Meetings Act so long as a quorum of the agency's members do not discuss their agency's business while in attendance. 03-OMD-178; 00-OMD-147; 95-OMD-136; OAG 78-634. If Mr. Chodowski has proof that a quorum of the members of the referenced council discussed the council's business while attending the roundtable discussion hosted by GOAP, he may challenge that council's actions by submitting an open meetings complaint to the council's presiding officer. The appeal now before us, involving the actions of GOAP, is not the appropriate forum for resolution of such a claim.
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 We are unwilling to assign error to GOAP for its apparent failure to respond to Community Farm Alliance's July 11 complaint. If the complaint was transmitted by U.S. Mail, it is unlikely that it reached GOAP until later in the week of July 11 through July 15, or that three business days had elapsed before the Alliance initiated the instant appeal on July 15.
2 Although GOAP falls within the definition of a "public agency" for Open Meetings purposes, specifically KRS 61.805(2) (g), meetings of its staff or administrative personnel are not subject to the requirements of the Act. Consistent with the principle, embodied in OAG 94-25, 95-ORD-71, and 00-OMD-141, that the Act "is intended to provide public access to meetings of decision-making bodies, and is not intended to provide public access to the day to day administrative work of a public agency, " we believe that the public's interest in governmental accountability is effectively promoted when ADB, GOAP's governing body, conducts its meetings in accordance with the requirements of the Open Meetings Act.