Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the City of Independence violated the Open Meetings Act when a committee formed to review Section 9.23(d) of the current Zoning Ordinance (governs recreational vehicles), consider possible amendments, address issues regarding Portable On Demand Storage units (PODS), and present to the City Council a proposed text amendment at the next regular meeting, failed to comply with the statutory requirements for conducting a meeting. More specifically, the dispositive issue is whether the "R/V Committee" is a public agency within the meaning of KRS 61.805(2) - a close question on the facts presented. Because the Committee was "established, created and controlled" by the City, a public agency, the Committee is also properly characterized as a public agency pursuant to KRS 61.805(2)(g). Accordingly, the Committee violated the Act in failing to comply with the notice requirements for special meetings codified at KRS 61.823.
On January 18, 2006, Mr. Warth submitted a written complaint to Christian J. Moriconi, Mayor, via electronic mail, alleging that "City Council failed to strictly comply with multiple sections of the Open Meetings Act when it established a legislative group" at the City Council meeting held on November 7, 2005. "Changes in a proposed text amendment, as discussed by the group," were presented at the meeting on December 5, 2006. Citing KRS 61.800, Mr. Warth asserted that discussions regarding the formation of public policy are public business and should be conducted in such a way as to afford the public "every opportunity to observe its government in action." Mr. Warth's complaint "is not against the nature or reason the committee was formed." Minutes "were taken at the meeting" and are "not part of this complaint." 1
Asking the City Attorney to review 98-OMD-96, Mr. Warth emphasized that he does "not believe this is a willful act on the part of our city officials to bypass the Open Meetings Act. " To the contrary, Ms. Warth contended the problem was "a lack of clear understanding on the part of our city officials" as to the requirements imposed upon them by the Act. At the City Council meeting of November 7, 2006, "the mayor tasked the group to address the issues of [PODS], to review the current city ordinance, and review the proposed text amendment to be sent to the Northern Kentucky Area and Planning Commission." According to Mr. Warth, two City Council members volunteered for the Committee and a majority of this group was "appointed, selected or asked to join the group by city officials (city council members)." Between November 7, 2006, and December 5, 2006, "this group reviewed, discussed alternatives and helped develop the policy language of the proposed text amendment to our city's ordinance. " In sum, the group consisted of "three city council members, the city zoning administrator and other residents." Public business was discussed at this meeting, alternatives were presented to City Council, "and this is evident" from the minutes of the meeting held on December 5, 2005.
Based upon the foregoing, Mr. Warth argued the Open Meetings Act governs the meeting in question as this group is "an ad hoc committee per KRS 61.805(2)(g) or it can be defined as an 'entity' per KRS 61.805(2)(f)." In his view, the Committee "does not satisfy any exception to open meetings as set forth in KRS 61.810." Rather, this "'public agency' " or "'entity' " failed to provide "a purpose, date, time and place for public observation and excluded the public" by not fulfilling the requirements of KRS 61.820; the Committee also failed to comply with the notice requirements for special meetings codified at KRS 61.823. To remedy the alleged violation, Mr. Warth proposed that in the future, "the City Council operate in accordance with the Open Meetings Act when creating or establishing committees or other groups where public business is discussed." In addition, Mr. Warth asked the City Council to "adopt new rules and procedures" concerning how it forms committees, and "respectfully" asked that city officials educate themselves as to the requirements of the Act. 2
By letter dated January 25, 2006, Jed K. Deters, City Attorney, responded to Mr. Warth's complaint on behalf of the City. 3 More specifically, Mr. Deters observed:
The City takes the position that KRS 61.805(2)(f) was not applicable as no official committee was, or ever has been, formed for this purpose, nor was any person appointed to be a member of such a group. What actually occurred was that a group of concerned citizens volunteered to look at the issue [to] see if they thought, in their opinions, that there needed to be any changes to the current text. It was their desire to simply make a recommendation to council as citizens. It is my understanding that many who volunteered were RV owners themselves. Your letter of complaint clearly acknowledges that two councilpersons "volunteered" to meet.
Further, the City takes the position that KRS 61.805(2)(g) was not applicable as no official committee was "established, created, and controlled" by the City of Independence.
In conclusion, Mr. Deters assured Mr. Warth that the City "makes every effort to comply with all laws, especially [the] Open Meetings Act and the Open Records Act." By letter dated March 3, 2006, Mr. Warth initiated this appeal from the City's denial of his complaint.
In support of his position, Mr. Warth provides the following summary of the six minutes 4 during which members of the City Council and the Mayor "created, formed, established and selected" members of the Committee:
. Council Member Cobble said she would "like to recommend a committee"
. Mayor Moriconi asked Council Member Cobble, Council Member Little and Annie Wuestefeld, Zoning Administrator, "would you like to form a mini-committee so we can hash this out maybe meet, you guys come back with a recommendation"
. Council Member Franzen stated she would like to "sit on the committee"
. Council Member Little asked if the Mr. Sanders or Mr. and Mrs. Miller sitting in the audience wanted input because he "would like, enjoy that" and "that [would] be helpful"
. Mayor Moriconi restated the members of the committee again
. Mayor Moriconi asked Annie Wuestefeld to decide on a date and a time to meet and the Mayor stated "maybe the committee idea is not such a bad idea"
. Mayor Moriconi asked if the group would address the PODS issue
. Council Member Cobble again asked "because we are going to refer to committee" and Mayor Moriconi [] responded "That is correct"
. Council Member Cobble asked Council Member Kelso if they "needed a motion to set up a committee" and he responded "no"
. City Attorney Jed Deters off camera said "The Mayor can, the Mayor just appointed . . . "
. Council Member Little asked if the committee could discuss PODS rental agreement
. Mayor Moriconi agreed with Council Member Little "to hand that part to the committee"
Citing 97-ORD-139, 5 Mr. Warth contends the "R/V Committee acted as a unit when they met, discussed the various public policy options and voted on particular changes to the language of the text amendment." In addition, Mayor Moriconi "selected willing participants publicly (officially) and asked the Zoning Administrator (delegated) to facilitate the meeting times and dates." The Committee was then "asked to review (consider) and recommend changes to the text amendment and presented these changes" at the City Council meeting of December 5, 2005, "(report to a higher authority)." Only matters related to recreational vehicles and PODS units "were handed over (entrusted) to the [C]ommittee."
Relying upon 98-OMD-96, Mr. Warth further observes that a "majority of the R/V Committee members were selected by Mayor Moriconi" at the City Council meeting, the Committee "was asked to review the current text amendment," and the Committee "played a role in the development of the language of the text amendment." Noting that Council Member Little "specifically requested that three people in attendance" at the meeting "be invited to participate," Mr. Warth argues that a Mayor and/or members of City Council meet the criteria of KRS 61.805(2)(f). In Mr. Warth's view, Council Member Cook replacing Council Member Cobble "shows a continuation of membership." Recommendations of the Committee were presented at the meeting on December 5, 2005.
According to Mr. Warth, the City's position that nobody was appointed conflicts with 98-OMD-96 (appointed "should not be read so narrowly as to require formal action" ). Quoting 99-OMD-77 ("our conclusion is not altered by the fact that the committee does not have authority to take action," and KRS 61.805(2)(g) "applies to advisory committees . . ."), Mr. Warth asserts that the Committee "played a role in the formation of public policy and served an advisory function." Because the City Council could not resolve the "text amendment issues," a committee was formed to discuss those issues and make recommendations to the City Council. As further support for his position that the Committee was "create[d], established and controlled" by the City, and the Committee operated in an "advisory capacity," Mr. Warth cites 05-OMD-117 (holding the Pewee Valley Master Plan Review Committee was a public agency pursuant to KRS 61.805(2)(e), (f), and (g) as opposed to being an "informal group").
In summary, Mr. Warth argues the DVD and meeting minutes, copies of which are attached to his appeal, 6 reflect the City's "obvious intent" for the Committee to "review and recommend updates to specific issues relating to the text amendment because council members could not agree." This group "did not meet of their own accord but rather met [as] a direct result of the actions and requests made to organize" by the Mayor and City Council members, who "outlined what the committee would discuss (agenda)" before committee members were selected; the committee "existed solely to develop policy recommendations. "
Upon receiving notification of Mr. Warth's appeal from this office, Mr. Deters supplemented his response on behalf of the City. In relevant part, Mr. Deters offers the following insight as to the nature of the Committee:
Being unable to reach any conclusions, and at a regular open meeting of the City Council, a "group" of citizens volunteered to discuss the issue and see if some middle ground could be reached. Two Council persons volunteered their time, and the Mayor asked the Zoning Administrator to attend any gatherings of the "group." There was not a majority of the City [C]ouncil present at any gathering of the "group." There was nothing secret about the "group" whatsoever. It was basically an effort to allow both factions to continue to argue their points without involving and taking up council time. This "group" had no authority to do anything other than to meet on their own and come back to a meeting in the future to make any suggestions that they desired. Nothing that this "group" came up with was in any way binding on the City.
In conclusion, Mr. Deters asserts that the Committee "was no different than any other group of citizens making a presentation to the [C]ity at a regular meeting, trying to persuade the City to enact legislation." Based upon the weight of governing authority, this office respectfully disagrees with the City's characterization of the Committee.
Although the question presented is a close one, it is the decision of this office that the Committee is a public agency within the meaning of KRS 61.805(2)(g). To hold otherwise "would clearly thwart the intent of the law."
Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (1987). As consistently recognized by the Attorney General, our analysis is necessarily guided by the legislative statement of intent set forth at KRS 61.880, pursuant to which "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." In construing this provision, the Kentucky Supreme Court has held that public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny,"
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997), since this declaration "is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency." Presidential Search Committee, supra, at 886.
Pursuant to KRS 61.805(2)(g), 7 a public agency is defined 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[.]
It is beyond dispute that the Independence City Council is a public agency within the meaning of KRS 61.805(2)(c); 8 any committee established, created, and controlled by the City Council is a public agency in accordance with the express terms of KRS 61.805(2)(g). 9 See, e.g., Presidential Search Committee, supra (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) ; 10 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) ; 97-OMD-139 (holding that Housing Appeals Committee at Eastern Kentucky University is a public agency pursuant to KRS 61.805(2)(g), and its meetings are open to the public unless it can properly rely upon one or more exceptions to the Act); 98-OMD-96 (holding that a sign committee created by the City of Madisonville zoning administrator is a public agency) ; 99-OMD-77 (holding that Finance and Budget Committee created by Franklin County Fiscal Court as an advisory body is a public agency within the meaning of KRS 61.805(2)(g)); 04-OMD-148 (holding that Case Review Committee of the Kentucky Board of Pharmacy is a public agency pursuant to KRS 61.805(2)(g)) .
As evidenced by the record, Council Member Cobble recommended creating a committee when the City Council was unable to resolve the issue relative to Section 9.23(d), at which point Mayor Moriconi asked two other Council members and the Zoning Administrator to "form a mini-committee" and "come back with a recommendation. " Council Member Franzen then indicated that she would like to "sit on the committee;" Council Member Little also invited citizens from the audience to participate. Mayor Moriconi subsequently reiterated the names of proposed committee members before asking the Zoning Administrator to coordinate a date and time for the committee to meet. In addition, Mayor Moriconi asked the group to address the PODS issue; Mayor Moriconi again confirmed the Council would be referring the issues raised to committee when asked by Council Member Cobble. 11 When viewed in context, this exchange validates Mr. Warth's position that City Council, a public agency, "established, created and controlled" the Committee as required to trigger application of the Open Meetings Act. Compare 94-OMD-148; 96-OMD-174; 99-OMD-178; 00-OMD-141.
Our decision is not altered by the fact that the Committee consists of less than a quorum of the City Council; nor does the advisory role of the Committee compel a different outcome. In rejecting the argument that the Finance and Budget Committee of the Franklin County Fiscal Court was not a public agency within the meaning of KRS 61.805(2)(g), the Attorney General observed:
Inasmuch as the Finance and Budget Committee, standing alone, constitutes a public agency for purposes of the Open Meetings Act, we look not to the total composition of the Fiscal Court to determine the presence of a quorum of the Finance and Budget Committee, but to the total composition of the committee itself. The committee consists of three members of the Fiscal Court. A quorum of the committee is present, and a meeting occurs, when two of its members come together to discuss public business, "regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." KRS 61.805(1). Such meetings must be open to the public.
99-OMD-77, p. 4. In our view, this reasoning extends to the instant appeal. 12
As previously noted, the inability of the Committee to take formal action does not alter our conclusion. By its express terms, KRS 61.805(2)(g) applies to advisory committees established, created, and controlled by a public agency. In relevant part, 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 . . .[.]" (Emphasis added). When construing this provision, the Attorney General has expressly "attached significance to the use of the disjunctive particle, 'or,' rather than the conjunction 'and.'" 98-OMD-94, p. 5; 99-OMD-77; 03-OMD-187. In 98-OMD-94, this office recognized that since a quorum of the members of the public agency was present and public business was discussed, the agency violated the Act in failing to notify the public of the meeting, thereby excluding the public from the meeting. As in the cited decisions, the Committee "play[ed] a role in the formation of public policy" ' so its meeting was "subject to the requirements of the Open Meetings Act "notwithstanding the fact that it [did] not have authority to act." 13 99-OMD-77, pp. 4-5. See, e.g., Presidential Search Committee, supra; OAG 89-25; OAG 91-54; 98-OMD-96. 14
Established, created, and controlled by the Independence City Council, the "R/V Committee" is a public agency within the meaning of KRS 61.805(2)(g); any meeting of the Committee at which a quorum of the Committee members was present and public business was discussed, should have conformed to the requirements of the Open Meetings Act. Although the City apparently did not intend to exclude the public from the single meeting held, nor did the City act in bad faith, the Committee violated the Act in failing to comply with the notice requirements for special meetings codified at KRS 61.823. "Any other holding would clearly thwart the intent of the law." Presidential Search Committee, supra, at 886.
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.
Michael A. Warth1897 Bridle PathIndependence, KY 41051 Christian J. Moriconi, Mayor5409 Madison PikeIndependence, KY 41051
Jed K. DetersIndependence City AttorneyDeters, Benzinger & Lavelle, PSC207 Thomas More ParkwayCrestview Hills, KY 41017-2596
Footnotes
Footnotes
1 Failure to keep minutes of action taken at every meeting of a public agency constitutes a violation of KRS 61.835.
2 Attached to Mr. Warth's letter of appeal is a copy of the e-mail which he directed to Patricia H. Taney, City Clerk, on January 17, 2006, as well as her response indicating that Council Member Carol Franzen, to whom she forwarded Mr. Warth's inquiry, was the Chairman of the Committee, which had "one meeting," and did not "set a meeting schedule" to her knowledge; "[n]otes were taken," but the Committee was "not officially established by an Executive or Municipal Order." In her response to Mr. Warth later that day, a copy of which is also attached to Mr. Warth's appeal, Ms. Franzen advised Mr. Warth that it "was not an official committee" as none of the members were "appointed by council or the mayor, nor was this a committee created by an official act of council or the mayor."
According to Ms. Franzen, the Committee was "simply a group of people who volunteered to try and come up with a solution to the RV 'problem.'" Anyone who volunteered to participate "was more than welcome to attend. " Ms. Franzen was considered the chairperson because she "called the volunteers and tried to arrange the time and place for everyone to meet." Both Ms. Franzen and the Zoning Administrator "took notes of the suggestions made by people," but she is not sure they could be considered "official minutes" since it was "not an official meeting." No additional discussion times were set nor did any of the group "meet again to discuss the issue." Although three "council people" attended, "this is not considered a quorum. "
On February 10, 2006, Mr. Warth directed another inquiry to Ms. Franzen via e-mail, seeking clarification as to whether a vote had been taken at the meeting; a copy of this exchange is also attached. According to Ms. Franzen, there "was a show of hands but, no decision was made because that part of the ordinance was left blank for council to decide and fill in." Later that morning, Ms. Franzen elaborated upon her position, explaining that "no ordinance came out of any meeting." In fact, "the number of vehicles was left blank until the [C]ouncil meeting when it was discussed so all Council members could decide." In explaining the process for presenting an ordinance, Ms. Franzen clarified that a quorum in this case "would be four." Because the ordinance was "given a second reading and passed by a 4-2 vote of council," Ms. Franzen considered the matter "closed."
On February 25, 2006, Mr. Warth asked Council Member Margaret Cook via e-mail to explain a previous statement regarding the voting issue as well as how she came to be on the Committee since Council Member Cobble "was going to attend but did not"; a copy of this exchange is also attached. As observed by Ms. Cook, votes were taken, "not necessarily hands shown, but oral votes"; a vote was taken "on the weight of the recreational vehicles and a vote taken on the number of recreational vehicles allowed." The meeting was "stacked" when she arrived. Including Ms. Franzen, Ms. Cook named a total of six people (Jamie Henson, Mr. Gehrig, The Sanders, and Mr. Saylor) in favor of no restrictions, with the opponents being "The Millers and Ken Lancaster." Ms. Cook was asked to serve in place of Ms. Cobble "because she had already committed to a watershed meeting prior to the meeting being arranged."
3 Although the City failed to issue a written response within three business days, as mandated by KRS 61.846(1), Mr. Deters apologizes "for the lapse of time in responding" to Mr. Warth's complaint, and thanks him for being patient. Because the City acknowledges this procedural error, the Attorney General will not belabor the issue.
4 A review of the DVD enclosed with Mr. Warth's appeal confirms the accuracy of his timeline; the exact times have been omitted from this otherwise identical version of his summary.
5 In 97-OMD-139, this office found that KRS 61.805(2)(g) refers to entities which possess the following characteristics:
. its members act as a unit;
. authority has been officially delegated to it;
. its responsibility is to consider, investigate, take action on, or report to a higher authority; and
. specific matters are entrusted to it.
Id., citing OAG 94-25.
6 In relevant part, the minutes of the meeting held on November 7, 2005, read as follows:
A lengthy discussion took place between the audience, council members and Mrs. Wuestefeld, which resulted in several people (including Council Members Franzen and Little) volunteering to sit on a committee to review Section 9.23(d) and present to the full Council a proposed text amendment that would be practical for this community. Mayor Moriconi requested they address the issue of establishing regulations for PODS also.
7 As implicitly acknowledged by Mr. Warth, the remaining subsections are facially inapplicable with the possible exception of KRS 61.805(2)(f)., pursuant to which a public agency is: "Any entity when the majority of its governing body is appointed by a "public agency" as defined in paragraph (a),(b),(c),(d),(e),(g), or (h) of this subsection, a member or employee of a "public agency, " a state or local officer, or any combination thereof[.]" In 98-OMD-96, this office found the term "appointed" should "not be read so narrowly as to require formal action. " Id., p. 4. Likewise, this provision does not require "that the entity be empowered to take action by or on behalf of the municipality." Id., p. 3. Neither the lack of "executive action" nor the "purely advisory function" of the committee altered our conclusion. Id. Accordingly, the similar arguments raised by the City are unpersuasive in our view. Because the Mayor played a relatively passive role in selecting members of the Committee, KRS 61.805(2)(f) arguably would not apply; however, our resolution of the issue relative to KRS 61.805(2)(g) renders further elaboration unnecessary.
8 Pursuant to KRS 61.805(2)(c), "Public agency" means:
Every county and city governing body, council, school district board, special district board, and municipal corporation[.]
9 When called upon to render a decision involving statutory interpretation, this office is required to "ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247 (1962); KRS 446.080(1). To determine legislative intent, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth of Kentucky, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, we "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
10 "It is the opinion of this court that [KRS 61.805(2)] . . . means that a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. " Presidential Search Committee, supra, at 886.
11 Despite the City's initial assertion that an "official" committee was never formed, and repeated use of the term "group" on appeal, the record confirms that volunteers formed a "committee" in the common and approved sense of the word; the terminology used by the Mayor/Council is telling if not dispositive.
12 As often noted by this office, "there are only two kinds of meetings - regular and special meetings." 94-OMD-50, p. 3. Accordingly, any meeting that is not a regular meeting is, by definition, a special meeting subject to the notice requirements codified at KRS 61.823.
13 From a practical standpoint, this case is unique insofar as the Committee only met one time.
14 In Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."