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 Somerset City Council violated the Open Meetings Act when its retained counsel conducted a series of less than quorum meetings with members of the City Council, collectively constituting a quorum of the agency, to advise the City Council about their rights and duties as elected officials and discuss what could be done to ensure that the Mayor followed their laws. Acknowledging that we are unable to determine whether the council members intended to avoid the requirements of KRS 61.810(1) in conducting these meetings, and that the record on appeal does not conclusively establish that a series of less than quorum meetings occurred and the members attending those meetings collectively constituted a quorum, we find that if such meetings, in fact, occurred, the council's actions contravened KRS 61.810(2).
On February 27, 2007, Jay McShurley submitted a written complaint to the Mayor, council members, and counsel in which he alleged that its retained counsel had conducted a series of less than quorum meetings with members of the City Council, collectively constituting a quorum of the agency, to discuss public business. In his complaint, Mr. McShurley stated:
The violations have occurred after the City Council voted to retain Hon. Dan Yeast as attorney for the City Council. Subsequently, enough members of City Council apparently meet with Hon. Dan Yeast to collectively constitute a quorum of the City Council. The conduct of at least a quorum of the City Council is evidenced by the fact that on February 26, 2007 Hon. Dan Yeast appeared before the City Council in Executive Session and presented a proposed lawsuit he prepared, ready to file, on behalf of the City Council. No prior meeting was held regarding the proposed lawsuit. It also seems that any meeting by a member of City Council with Hon. Dan Yeast could be a violation as I presume Hon. Dan Yeast represents all members of City Council.
As a means of remedying the alleged violations, Mr. McShurley proposed that all future meetings between the City Council's attorney and any member of the City Council be required to be conducted as a public meeting, open to the public at all times.
In a response to Mr. McShurley, dated February 28, 2007, attorney Daniel D. Yeast, responding on behalf of the City Council, denied the allegations set forth in the complaint. In his response he explained:
I assure you that neither myself nor any counsel members dealing with me directly have violated the Open Meetings Act. First, I have never met with a quorum of the members of City Council at one time. Additionally, there has been no action taken whatsoever when I have met with any member of the City Council. The only action taken has been done during an open meeting and voted on in public. I believe this is an appropriate way to conduct business with the City Council and not be in violation of the Act.
I do appreciate your concern but I do not find it is well founded. Additionally, the logic that you have in your letter is simply flawed. If you take your logic to the end extreme I will never be able to meet with any council member and there would be no attorney client privilege or attorney work product privilege whatsoever. Moreover, an extension of your logic would be that the city attorney could never meet with the mayor or any member of the City Council, therefore, I do not find your argument applicable. 1
On March 5, 2007, Mr. McShurley initiated this appeal, arguing that it appeared to him that under the pretense of an attorney/client relationship, the City Council could conduct business while ignoring open meetings laws. He also noted that the meetings which occurred before the Council authorized the filing of the lawsuit were held before a vote was taken at a public meeting to authorize the filing of the lawsuit.
After receipt of notification of the appeal, Mr. Yeast provided this office with a supplemental response to the issues raised in the appeal. In his response, Mr. Yeast advised that the City Counsel, at its February 5, 2007, meeting voted to retain him to represent the Council; at that meeting he was asked to advise and assist the Council with their rights as elected officials as well as their duties to the City, and what could be done to ensure the Mayor followed their laws. Mr. Yeast stated that subsequent to the February 5th meeting, several council members individually came to him and told him of the dilemma that they were facing with the current Mayor. He further stated that he never met with a quorum of the Council and the largest number of counsel members he had met with was four, indicating a quorum required seven members. He further advised that, thereafter, he prepared various municipal orders to aid in making the Mayor comply with local and statutory laws. These municipal orders were take to the Mayor, but were not put on the agenda for the next regularly scheduled meeting. As a result, Mr. Yeast indicated he then drafted a complaint against the Mayor and presented it to the Council at its February 26, 2006 meeting as one avenue to force the Mayor to comply with local and statutory laws; each council member was given a copy of the complaint. Concluding, Mr. Yeast argued that there had been no meetings of a quorum outside of a public meeting nor had there been any action taken outside of a public meeting in violation of the Open Meetings Act. Because Mr. McShurley does not allege that a secret meeting of a quorum of the members of council occurred, or that action was taken in secret, we find Mr. Yeast's arguments inapposite. Mr. McShurley complains that the members of council met with Mr. Yeast in a series of less than quorum meetings to discuss their concerns and that the members attending collectively constituted a quorum, in contravention of KRS 61.810(2). If, in fact, such meetings occurred, we agree with Mr. McShurley.
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. 03-OMD-092. That statute 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, 2 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 00-OMD-63, p. 5, 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. "
(emphasis added).
In Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), the Kentucky's Supreme Court 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). (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 complainant in this appeal asserts that the City Council violated KRS 61.810(2) by conducting a series of less than quorum meetings with retained counsel and members of the Council to discuss public business, i. e., taking action against the Mayor to ensure compliance with local and statutory laws.
Although the record before us does not conclusively establish a series of less than quorum meetings where the members attending collectively constituted a quorum, Mr. Yeast acknowledged, in his supplemental response that he had met with several council members individually and had one meeting with four council members to discuss "the dilemma that they were having with the Mayor." 3 He also indicated a quorum required seven council members. Standing alone, a single meeting between two members of a public agency cannot be said to constitute a violation of the Open Meetings Act. Where, however, there are a series of less than quorum meetings in which public business is discussed and where the members attending one or more of the meetings collectively constitute a quorum of the members of the council, that series of less than quorum meetings constitutes a violation of KRS 61.810(2), if the meetings are held for the purpose of avoiding the requirements of KRS 61.810(1). As noted above, this office has long recognized that it cannot determine the subjective intent of the participants in a series of less than quorum meetings and we will not attempt to do so here.
The record on appeal confirms the occurrence of the first and possibly the second of these elements.
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Following these series of meetings in the instant appeal, Mr. Yeast came to the next regular meeting with a complaint drafted against the Mayor. From this, the public could reasonably infer that information to support the allegations in the complaint may have been gathered and discussed in the series of less than quorum meetings. If such was the case, and the members attending these meetings collectively constituted a quorum, we find that the series of less than quorum private discussions which preceded the preparation of the complaint against the Mayor 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 meetings, but otherwise conclude that the series of meetings, if held for the purpose of avoiding KRS 61.810(1), 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 On this issue, we refer the parties to OAG 97-1, a copy of which is enclosed, for an analysis of the limited availability of the attorney-client privilege in open meetings disputes.
2 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 . . . ."
3 The three elements of the offense described inKRS 61.810(2) are as follows:
(1) a series of less than quorum meetings;
(2) the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency; and
(3) the meetings are held for the purpose of avoiding the requirements of [KRS 61.810(1)].