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 Kentucky Horse Racing Authority violated the Open Meetings Act at its March 19, 2007, meeting. We find that the record on appeal clearly supports two of the seven claimed violations, but that the Authority's conduct was otherwise consistent with the requirements of the Act.
On April 2, 2007, Garrett Redmond submitted a written complaint to Authority Chairman William Street in which he alleged that the Authority committed seven violations of the Open Meetings Act in advance of, during the course of, or after the March 19 meeting at which his case, No. 07-201, was discussed. Specifically, Mr. Redmond alleged:
1) the meeting agenda prepared in advance of the meeting contained the agenda item: "VI. Executive Sessions" and "[t]here is not a reference to, nor permit for, 'executive sessions' in the laws applicable to open meetings";
2) the Authority failed to observe the formalities for conducting the closed session set forth at KRS 61.815(1);
3) the topic of the closed session, KHRA Case No. 07-201, did not qualify for a closed session discussion under any of the exceptions found at KRS 61.810(1);
4) assuming, arguendo, that the Authority could discuss Case No. 07-201 in closed session pursuant to KRS 61.810(1)(j), the presence of a nonmember in the closed session, namely, the hearing officer assigned to the case, vitiates invocation of that exception;
5) the minutes of the Authority's February 20 meeting were not available for public inspection either before or after the March 19 meeting;
6) the Club Lounge in the covered arena of the Kentucky Horse Park, at which the Authority conducted its meeting, was not convenient to the public insofar as it is not a site familiar to the public, is not well-marked, and is not handicapped accessible;
7) the meeting room conditions did not permit effective public observation insofar as the arrangement of the members' table and audience seats, coupled with the absence of a public address system, rendered the members' discussion inaudible.
As a means of remedying these violations, Mr. Redmond proposed, inter alia, that the Authority "announce its decision on March 19, 2007, in the matter of Case No. 07-201 was improper and is null and void;" that the Authority "publicly discuss and deliberate on the issues," that the Authority conduct its meetings at "[a] place of sufficient area in Lexington, accessible to the handicapped . . ., with adequate acoustics or sound amplification, "and that the Authority give "[c]lear direction to the location . . . with all notices of meetings."
In correspondence directed to this office following commencement of Mr. Redmond's appeal, the Authority acknowledged violation of KRS 61.815(1), explaining that measures have since been taken to remedy the violation, but otherwise denied the allegations of the open meetings complaint. 1 On behalf of the Authority, attorney John L. Forgy defended the agency's reliance on KRS 61.810(1)(j), notwithstanding the presence of the hearing officer in the case in the closed session, characterizing the hearing officer as agency "staff, " and explaining that he "attended the closed session in order to familiarize the authority with his recommended order and to answer any legal questions that might arise." In support, Mr. Forgy cited
Fankhouser v. Cobb, Ky., 163 S.W.3d 389 (2005), recognizing that a "hearing officer's decision to stay with the tribunal during its deliberations is consistent with the provisions of KRS 13B." On behalf of the Authority, he argued for an extension of the holding in that opinion to the instant appeal.
Turning to the issue of the Authority's compliance with KRS 61.835 in relation to Mr. Redmond's request for the minutes of the February 19 meeting, Mr. Forgy observed:
Mr. Redmond approached the undersigned at the beginning of the March 19th meeting and asked for a copy of the minutes of the February meeting. The minutes could not be given to him until approved during the course of the March 19th meeting, however. This is in accord with KRS 61.835, which requires the minutes to be "open to public inspection at reasonable times no later than immediately following the next meeting of the body." Mr. Redmond left the March 19th meeting without approaching the undersigned to obtain a copy of the minutes, which the undersigned could have provided to him at that time. However, the minutes were ultimately e-mailed to Mr. Redmond on Monday, March 26th, pursuant to an email request received by the Authority on Friday, March 23rd.
In support, Mr. Forgy attached a copy of the referenced email.
Responding to Mr. Redmond's complaint the site selected for the Authority's meeting was inconvenient and did not allow effective public observation, Mr. Forgy explained:
[T]he Authority's main administrative office is located in the Kentucky Horse Park. The conference room inside the office is not large enough to accommodate the 15-member Authority, its attendant staff, and interested members of the public (often fifty or more people). The Covered Arena, on the other hand, is a large structure located less than a mile from the Authority office. Anyone having difficulty finding the Covered Arena need only query the staff at the office, or indeed anyone at the numerous other offices in the horse park, or at the public museum near the entrance to the park, and instructions can easily be provided. The Covered Arena is within easy visual distance from many locations near the front of the park on Ironworks Pike.
The Club Lounge itself is located on the second floor of the Arena. A stairwell and an elevator provide easy access to the lounge. The Club Lounge provides a quiet and comfortable location for the conduct of Authority meetings. Water fountains and restroom facilities are both available. The Authority members sit at tables arranged in a semi-circle at the center of the rectangular room, with audience seating available at both ends of the room. Authority proceedings are clearly audible, and exchanges between Authority members and members of the public from the seating areas occur frequently and without evident strain or difficulty. The Covered Arena and Club Lounge are both accessible to the handicapped. Handicapped parking spaces are available outside, and there are railed ramps at all four corners of the arena. Inside the arena, the elevator exits upstairs into the Club Lounge itself, and is clearly marked with a handicapped sign.
For these reasons, the Authority asserted, Mr. Redmond's allegations are unfounded. We cannot wholly agree. We find that in addition to the Authority's admitted noncompliance with KRS 61.815(1), the Authority improperly permitted the hearing officer in Case No. 07-201 into its closed session deliberations on that case thereby invalidating its reliance on KRS 61.810(1)(j).
We address first Mr. Redmond's allegations concerning the propriety of the closed session. We find that his claim that the agenda was deficient because it did not identify the statutory authority for the closed session is meritless. This office has consistently recognized that KRS 61.820, governing regular meetings, does not expressly or impliedly require an agenda, and that the constraints inherent in a special meeting agenda, which is expressly required by KRS 61.823, do not apply to regular meeting agendas voluntarily created. Hence, a regular meeting agenda may include the items "old business," "new business," "open to floor," and "open to council," but a special meeting agenda may not. 01-OMD-175. Agencies are not bound by any limitation relative to discussion of, or actions on, matters not identified in a regular meeting agenda, but are clearly limited to discussion of, and action on, specific items at a special meeting. 02-OMD-11. Neither notice of, nor an agenda for, a public meeting is required under the Act if that meeting is "provide[d] for [in] a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business." 02-OMD-11, citing 01-OMD-175 and 01-OMD-181. Discretion as to the contents of a regular meeting agenda, so long as it is not intentionally misleading or deceptive, largely rests with the agency, and we find no requirement in the law that the agency identify the specific statutory authority for a closed session in that agenda. The Authority's omission of a specific reference to KRS 61.810(1)(j) in its regular meeting agenda therefore did not constitute a violation of the Open Meetings Act. See 01-OMD-175 and 02-OMD-11 (enclosed).
Turning to Mr. Redmond's allegation that the authority failed to observe the formalities for conducting a closed session set forth at KRS 61.815(1), and that the closed session was, in any event, unauthorized insofar as no statutory exemption permitted it, we will not lengthen this decision with an analysis of the Authority's obligations under the referenced provision. The Authority candidly acknowledges that it did, in fact, fail to observe the formalities for conducting its closed session discussion of Case No. 07-201. On this issue, 98-OMD-74 is controlling. At page 8 of that decision, a copy of which is enclosed, the Attorney General held that in those cases where the agency acknowledges the claimed open meetings violation:
[the] scenario can be analogized to an open records appeal in which a public agency initially denies a request for records and an appeal is filed, but the agency releases the records before the Attorney General issues his decision. In such instances, 401 KAR 1:030, Section 6, specifically provide[s] that "the Attorney General shall decline to issue a decision in the matter." Although the regulation does not extend by its express terms to open meetings appeals, we believe that its underlying logic applies with equal force in these appeals. Where the agency concedes error, the issue upon which that portion of the appeal is based becomes academic or moot.
See also, 98-OMD-119; 02-OMD-108; 06-OMD-235. Based on the Authority's admission of error, we find that 98-OMD-74, is dispositive, and that the issue of its noncompliance with KRS 61.815(1) is therefore moot. We trust that the Authority understands, and has now committed itself to strict compliance with, KRS 61.815(1) in the conduct of its meetings.
We find unpersuasive Mr. Redmond's argument that the closed session discussion of the hearing officer's recommended order in Case No. 07-201 was not authorized under KRS 61.810(1)(j). It is his position that because the case "presented the Authority an issue on which it had the option of various alternative actions[,] . . . it should not have been discussed out of public sight and earshot." We disagree. While the statutory presumption that informs the Open Meetings Act militates in favor of public discussion, the legislature has recognized that there are extraordinary circumstances that may warrant a public agency's decision to conduct a closed session and has carved out a number of exceptions to the Act that include KRS 61.810(1)(j). By its express terms, KRS 61.810(1)(j) authorizes closed session "[d]eliberations of judicial and quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representative, nor any other individual not a member of the agency's governing body or staff is present. . . ." In this context, the Authority operated as a quasi-judicial body and its deliberations focused on an individual adjudication of Mr. Redmond's right to race his filly. 810 KAR 1:029 Section 9; accord, 05-OMD-017 (deliberations resulting in dismissal of a complaint filed against an individual); compare, 05-OMD-159 (general discussion of policy matters). We therefore find that the Authority's invocation of KRS 61.810(1)(j) as the statutory basis for the closed session was proper.
Having so concluded, we nevertheless find that the presence of the hearing officer in the closed session was inconsistent with the Authority's invocation of KRS 61.810(1)(j) and invalidated the closed session. In 06-OMD-262, 2 this office reached the same conclusion with respect to a closed session discussion of the Kentucky Board of Emergency Medical Services Preliminary Inquiry Board. At page 17 of that decision, we focused on the "qualifying language upon which the outcome of this appeal hinges: 'at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present . . . .'" The record on appeal in that case confirmed the presence of one or more non-members in the closed session, and we therefore concluded that "KRS 61.810(1)(j) could not properly be applied in this context." Id. at 18. Although 06-OMD-262 is factually dissimilar from the instant appeal, we believe that its reasoning is controlling.
Here, as in 06-OMD-262, we focus on the qualifying language that appears in KRS 61.810(1)(j), expressly excluding from closed session deliberations any individual not a member of the agency's governing body or staff. The Authority does not argue that the hearing officer is a member of its governing body, nor could it reasonably do so, but maintains that his status can be equated to agency "staff" insofar as his presence "allow[ed] the deliberating body the benefit of the expertise and support that a staff can provide." In the hearing officer's case, this included "outlining his recommended order to the Authority and answering any questions the Authority may have." Respectfully, we disagree.
Although the hearing officer is "employed and compensated by the Authority to conduct administrative hearings under Chapter 13B," his role is that of an independent, neutral, third party who is expressly prohibited, by operation of the referenced chapter of the Kentucky Revised Statutes, from "communicat[ing] off the record with any party to the hearing or any other person who has a direct or indirect interest in the outcome of the hearing, concerning any substantive issue, while the proceeding is pending." KRS 13B.100(1). Although he may freely attend the open, public portion of the Authority's meetings to outline his recommended order to the Authority or answer the Authority's legal questions, the hearing officer's presence in the closed portion of the meeting "could certainly operate to the detriment of one brought before the [Authority],"
Stinson v. State Board of Accountancy, Ky. App., 625 S.W.2d 589, 591 (1981) and is contrary to the qualifying language that appears in KRS 61.810(1)(j). 3 The inclusion of this language in KRS 61.810(1)(j), and KRS 61.810(1)(j) alone, imports a legislative resolve that individuals whose rights and interests are the subject of closed session deliberations should not be prejudiced by the presence of anyone in the closed session other than members of the agency's governing body and staff. Acknowledging that there is no direct legal authority on this issue, we believe that the term "staff, " as it appears in KRS 61.810(1)(j), is intended to apply to a narrow category of clerical and support staff whose function is to serve and assist, such as the recording secretary in Stinson, above, whose presence in closed session the court readily approved.
We believe that Fankhauser v. Cobb, above, cited by the Authority for the proposition that the hearing officer's presence in a closed session is not inimical to Chapter 13B, and, by extension, KRS 61.810(1)(j), is factually distinguishable from the appeal before us. Fankhauser involved a teacher tribunal governed by KRS 161.790, a unique deliberative body comprised of three members drawn from a pool of neutral persons whose administrative authority and responsibilities are shared with the hearing officer, making them, "for purposes of KRS 13B.100(1), . . . a single entity." Id. at 405. The hearing officer in this context does not submit a recommended order to the tribunal but assists the tribunal in preparing its decision. It was for this reason that the Kentucky Supreme Court in Fankhauser determined that the hearing officer's presence in the closed session of the teacher tribunal was consistent with KRS 13B.080(1), requiring him to "preside over the conduct of an administrative hearing . . . and regulate the course of the proceedings in a manner which will promote the orderly and prompt conduct of the hearing," and did not constitute a prohibited ex parte communication within the meaning of KRS 13B.100(1). A teacher tribunal, the Court was quick to note, is "unusual," id., concluding that the hearing officer in a tribunal was not an interested party, and that therefore the "statement in Stinson about the impropriety of having the board's attorney present during deliberations" was inapplicable. Id.
We decline the Authority's invitation to extend the reasoning in Fankhouser, above, to the instant appeal. In our view, the holding in that case must be narrowly applied to those hearings in which the hearing officer presides before a tribunal. However, where the hearing officer submits a recommended order to the Authority, the hearing officer's presence in the Authority's closed session to consider the recommended order was contrary to the qualifying language appearing in KRS 61.810(1)(j), which prohibits anyone other than members of the governing body and staff from participating in the closed session. See also 13B.120 which limits the deliberation to the record, recommended order and exceptions to the recommended order under circumstances where a recommended order has been submitted by the hearing officer. We therefore cannot approve the presence of the hearing officer in the Authority's closed session deliberations. 4
We dispense with the remaining issues on appeal with alacrity. The record on appeal does not support Mr. Redmond's claim that the Authority violated KRS 61.835 by failing to make the minutes of its February 25 meeting available either before or after its March 19 meeting. KRS 61.835 did not require the authority to make the minutes available before the March 19 meeting, and Mr. Redmond presents no proof that he requested a copy of the minutes after the March 19 meeting. The emails submitted by the Authority in support of its position suggest that Mr. Redmond may have had some expectation that the minutes would be mailed to him after the March 19 meeting, but that it was not until March 23 that he tendered a request for the minutes. The minutes were forwarded to him that same day, and we find no legitimate basis on which a claim of violation of KRS 61.835 can be postulated.
Similarly, we find no merit to Mr. Redmond's KRS 61.820 claim that the site at which the Authority conducted its March 19 meeting was "inconvenient" insofar as it is not a site familiar to the public, is not well-marked, and is not handicapped accessible. The Authority addresses the later allegation to our satisfaction, noting the availability of handicapped parking spaces outside, and elevators inside, all of which are marked with appropriate signage. Assuming the truthfulness of these statements, we find no support in the record on appeal for Mr. Redmond's claim. As for his general concerns relating to the public's familiarity with the meeting site and the adequacy of signage identifying it, or directing the public to it, we find that 04-OMD-145 and 06-OMD-079 are dispositive of this issue. Copies of those decisions are attached hereto and incorporated by reference. Both 04-OMD-145 and 06-OMD-079 were premised on a recent Kentucky Supreme Court opinion declaring that "the open meetings statutes are designed to prevent government bodies from conducting business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require such agencies to seek out the most convenient time or location."
Knox County v. Hammons, Ky. 129 S.W.3d 839, 845 (2004). Here, as in the referenced decisions, there is no uncontested proof that "persons wishing to attend or participate in the [meeting] were effectively prevented from doing so" by virtue of the meeting location. Hammons, at 845.
The record on appeal is also devoid of uncontested proof that the meeting room conditions prevented effective public observation, in contravention of KRS 61.840, due to the arrangement of the chairs and the lack of a public address system. If, in fact, there was a problem in this regard, it appears that it was not brought to the Authority's attention during the course of the meeting. While the courts have recognized that, in general, "[t]here is no requirement of public objection found in the [open meetings] statute,"
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997), we believe that agency members or meeting participants whose statements are inaudible, but who are unaware of the problem, cannot reasonably be expected to rectify the problem. Compare, 97-OMD-28 (holding that board of education violated the Open Meetings Act by failing to address noise problem that had been brought to its attention, thus frustrating the public's ability to observe the meeting). This assumes, of course, that every feasible measure has been taken by the agency to insure effective public observation.
Ultimately, we cannot resolve these particular issues because of the conflict in the facts presented to this office by the parties. The problems associated with adjudication of these issues are compounded by the fact that our review is limited to the written record presented by the parties. KRS 61.846(2). The divergent factual accounts presented by the parties with regard to Mr. Redmond's KRS 61.820 and 61.840 allegations compel us to conclude that the record is insufficient to support the claimed violations with regard to KRS 61.820 and KRS 61.840.
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 Although Mr. Redmond did not expressly object to the Authority's failure to respond to his open meetings complaint in writing and within three business days, it is apparent that this omission constituted a violation of KRS 61.846(1). We urge the Authority to review this provision to insure strict compliance with the requirements of the Act in future open meetings disputes, should they arise.
2 Pursuant to KRS 61.846(4)(a), 06-OMD-262 was appealed to the Franklin Circuit Court on January 12, 2007. Kentucky Board of Emergency Medical Services v. Mercy Ambulance Service, 07-CI-00075 (Franklin Circuit Court, Division II).
3 Pursuant to KRS 13B.120(2), the Authority may also "remand the matter, in whole or in part, to the hearing officer" as an alternative to calling him before the Authority in open session.
4 Given the qualifying language that appears in KRS 61.810(1)(j), and KRS 61.810(1)(j), alone, we find that the line of decisions of this office recognizing that on rare occasion a nonmember may be invited into a closed session for limited purposes is inapposite. See, OAG 77-560; OAG 80-247; OAG 83-61; 92-OMD-1728; 00-OMD-219.