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 Graves County Board of Education violated the Open Meetings Act when a quorum of its members conducted a discussion of "the ramifications of the [Department of Education's] rejection of the [Board's] request for a waiver [of the Department regulations governing school construction] on the return trip [to Graves County] from Frankfort . . . ." In addition, we are asked to determine if the Board violated the Act in failing to respond to the April 2, 2007, open meetings complaint submitted by Todd Hayden in which Mr. Hayden leveled this allegation. For the reasons that follow, we find that the Board violated KRS 61.810(1) in conducting a discussion of public business in a nonpublic forum and KRS 61.846(1) in failing to respond to Mr. Hayden's complaint.
In his April 2 complaint, Mr. Hayden alleged that "[t]he Open Meetings Act was violated when the decision was made to consolidate Fancy Farm and Lowes School without discussing it at a public meeting . . . while in route returning to Graves County from the state board meeting in February." As a means of remedying the alleged violation, Mr. Hayden proposed that the Board "retract[] the consolidation movement and look[] deeper into building a new school in Fancy Farm with reduced funding . . . ." Having received no response to his complaint, Mr. Hayden initiated this appeal to the Attorney General.
In correspondence directed to this office following commencement of Mr. Hayden's appeal, Graves County Board of Education Attorney David Hargrove responded to Mr. Hayden's allegations, asserting:
The reason for the Board's lack of response is two-fold: First, the allegation is not true and secondly, even if the allegation had some basis, any violation was later cured in an open meeting.
By way of background, Mr. Hargrove explained:
The Graves County School District received funds from the state which they intended to use for the construction of an elementary school for the community of Fancy Farm, Kentucky. However, because the Fancy Farm school had less than 300 students and was in close proximity to another elementary school located in Lowes, Kentucky, the Department of Education rejected the facility plan to construct both schools on the basis that to do so would violate the Department's regulations. Instead, the Department mandated that the District construct one (1) school to service these communities.
The Board requested a waiver of these regulations and appeared before the State School Board on February 7 and 8, 2007. The request for waiver was unanimously rejected by the State School Board.
With reference to the allegation that the Board made the decision to consolidate the schools on the return trip from the referenced meeting, Mr. Hargrove advised that the Board "admits that it discussed the ramifications of the rejection of the request for waiver on the return trip from Frankfort," but argued that "none of its members made any formal or informal commitment, promise, or decision concerning any public business. " Rejecting Mr. Hayden's proposed remedy, Mr. Hargrove concluded that "even if the 'talk' between Board members on the return trip from Frankfort on February 8, 2007, could be construed as a meeting, any violation would have been cured by the subsequent public meetings [conducted at each elementary school in the district] and the vote taken at the Board's March 17 meeting." Respectfully, we disagree.
The fundamental mandate of the Open Meetings Act is found at KRS 61.810(1) and provides as follows:
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.
(Emphasis added.) This provision implements the legislative statement of policy, codified at KRS 61.800, which declares that "the formation of public policy is public business and shall not be conducted in secret . . . ." Kentucky's General Assembly has thus demonstrated its commitment to "open government openly arrived at." 99-OMD-146, p. 4, citing
Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N.J. Super. Ch. 1982)
In construing KRS 61.810(1) and KRS 61.810(2), 1 the Kentucky Supreme Court has recognized that the Open Meetings Act "prohibits a quorum from discussing public business in private or meeting in numbers less than a quorum for the express purpose of avoiding the open meeting requirement of the Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459,474 (1998). Continuing, the Court observed:
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 of a violation of the Act.
Id. The Supreme Court thus firmly established that even if a quorum of the members of the agency are present, "[f]or a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency." Id. (emphasis added). In the interest of absolute clarity, the Court opined:
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 [agency] has the option to take action.
Id. Because a quorum of the members of the Graves County Board of Education discussed "the various alternatives to a given issue about which the [Board] ha[d] the option to take action," its actions contravened KRS 61.810(1).
There can be no doubt that a discussion of "the ramifications of the rejection of the [Board's] request for waiver of the [Department's regulations] " constituted a discussion of public business. The expansive definition of the term "public business" that appears in Yeoman, above, coupled with the expansive definition of the term "meeting" that appears at KRS 61.805(1) 2 and the statement of policy found at KRS 61.800, import a legislative commitment to insuring the broadest possible access to meetings at which public business is discussed or acted upon. KRS 61.810(1) must be construed with a view to carry out the intent of the General Assembly since "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."
E. W. Scripps Co. v. City of Maysville, Ky. App., 750 S.W.2d 450 (1990) cited in
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Clearly, the discussion of the rejection of the Graves County Board of Education's request for a waiver that was conducted by a quorum of the members of the Board during its return trip from Frankfort, by its own admission, constituted a violation of KRS 61.810(1).
Our conclusion is not altered by the fact that "none of [the Board's] members made any formal or informal commitment, promise, or decision concerning any public business. " In 98-OMD-94, this office rejected a similar argument noting that:
KRS 61.810(1) requires that any meeting at which public business is discussed or action is taken must be open to the public. We attach significance to the use of the disjunctive particle "or" rather than the conjunction "and." Since a quorum of the members of the [agency] was apparently present and public business was discussed, the [agency] violated the Open Meetings Act by failing to notify the public about the meeting and by excluding the public from that meeting.
98-OMD-94, p. 5; accord, 99-OMD-117; 00-OMD-147; 02-OMD-153; 03-OMD-187; 05-OMD-117; 06-OMD-211. Clearly, the requirements of the Open Meetings Act were triggered when a quorum of the members of the Board discussed public business on the return trip from Frankfort, and the violation of the Act that was postulated on their failure to do so in a public forum was not mitigated by the fact that the members did not take action.
Nor was the violation of the Act that was postulated on the Board's failure to respond to Mr. Hayden's open meetings complaint mitigated by the Board's belief that his allegation was "untrue." KRS 61.846(1) expressly provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
A public agency is not relieved of its obligations under this statute simply because it deems the allegations of the complaint unmeritorious. As the Kentucky Court of Appeals has noted with reference to the procedural requirements of the Open Records Act, in a holding that applies with equal force to the procedural requirements of the Open Meetings Act, "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It requires the agency to issue a written response within three business days of receipt of the complaint, and the failure to do so constitutes a violation of the Open Meetings Act. 96-OMD-261; 97-OMD-43; 00-OMD-142; 04-OMD-029. We therefore find that the Graves County Board of Education violated KRS 61.846(1) in failing to respond to Mr. Hayden's open meetings complaint. We urge the Board to review the cited provision to insure that future responses satisfy the requirements of the Act, to bear in mind that in enacting the Act, "the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency,"
Lexington Herald Leader Co. v. University of Kentucky Presidential Search Committee, Ky. 732 S.W.2d 884, 886, (1987), and to be guided by the recognition that 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 at 924.
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 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.
2 The term "meeting" is defined at KRS 61.805(1) as:
"Meeting" means all gatherings of every kind, including video teleconferences, 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.
The fact that the meeting of the quorum of the members of the Graves County Board of Education took place in an automobile does not, again, alter our conclusion that a violation of KRS 61.810(1) occurred. The Act applies to casual or informational gatherings regardless of where the gatherings occur.