Request By:
Pat Thurman
Peter T. Goodmann
F. Ryan Keith
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Floyds Fork Watershed Management Plan Steering Committee violated the Open Meetings Act in denying Pat Thurman's request to tape record the meeting held on March 10, 2008. As a threshold issue, this office must determine whether the Steering Committee, which is co-chaired by the Floyds Fork Environmental Association and the Kentucky Waterways Alliance, Inc. (both of which are private), is a "public agency" for purposes of the Open Meetings Act. Based upon the objective evidence of record, this office must conclude that the Steering Committee does not fall within the definition of a "public agency" codified at KRS 61.805(2); accordingly, the Steering Committee is not statutorily obligated to comply with provisions of the Open Meetings Act.
In a written complaint submitted to Peter T. Goodmann, DOW, Watershed Management Branch and Groundwater Branch Manager, on March 14, 2008, because he was "presiding at the Steering Committee meeting," Ms. Thurman challenged "an action that took place at the meeting on March 10, 2008." More specifically, Ms. Thurman asserted that she "asked permission to tape the proceedings and [Mr. Goodmann] denied [her] request." It is Ms. Thurman's belief "this was a public meeting and, under the law, taping is permitted." To remedy the alleged violation, Ms. Thurman proposed that "taping be allowed at all future Steering Committee meetings in compliance with the Open Meetings Law. "
By letter dated March 25, 2008, Mr. Goodmann responded to Ms. Thurman's request, acknowledging that he alone does "not have the authority to approve or deny" a request to tape record a meeting. However, Mr. Goodmann's "impression was that no request to tape the meeting was made." According to Mr. Goodmann, he "did raise the objection that whether the steering committee meetings were subject to [the Open Meetings Act] was not resolved, but did not deny any request to tape this meeting." In any case, Mr. Goodmann "heard no objections from the Steering Committee members who were aware" of Ms. Thurman's actions.
That said, Mr. Goodmann disagreed with Ms. Thurman's interpretation of the "federal or Kentucky public meeting law" because the "EPA has determined that such meetings are not subject to federal public meeting requirements. Furthermore, the Division of Water has determined that these meetings are also not subject to [the Open Meetings Act] ." In his view, the Steering Committee is therefore authorized to decide whether notice of the meetings should be provided to the public, "who is provided access to attend the meeting[s], and whether the meetings are recorded by audiotape or videotape." That said, the Steering Committee "has seemingly encouraged openness and public participation." In conclusion, Mr. Goodmann encouraged Ms. Thurman "to continue to participate in a positive and cooperative fashion to develop a watershed plan that can be implemented and will result in improved water quality in Floyds Fork." By letter dated March 31, 2008, Ms. Thurman initiated this appeal, requesting this office to determine whether the Steering Committee is a public agency for purposes of the Open Meetings Act.
Upon receiving notification of Ms. Thurman's appeal from this office, Sandy Gruzesky, Acting Director of the DOW, supplemented Mr. Goodmann's response, initially asserting that her appeal is moot "since Ms. Thurman taped the meeting." More importantly, the Department for Environmental Protection "is not the proper entity to respond to Ms. Thurman's complaint. Even if the Steering Committee were a 'public agency' as defined in KRS 61.805(2), which DEP disputes, DEP is not a member of the Steering Committee and therefore could not have violated the Open Meetings Law. " Attached to Ms. Gruzesky's response is a list of Steering Committee members and their alternates. "The highlighted columns on Exhibit A list the name of each representative on the Steering Committee and whether he or she is an alternate, and the organization he or she represents. Neither DEP nor DOW appears on this list."
Attached to Ms. Gruzesky's response as Exhibit B is a copy of the Federally Funded Memorandum of Agreement (MOA) between the Commonwealth of Kentucky (DEP and DOW) and the Kentucky Waterways Alliance, Inc. (KWA), pertaining to the Floyds Fork Comprehensive Watershed-Based Plan as well as the "FFY 2006 Project Application." As Ms. Gruzesky correctly observes, page 2 of the MOA demonstrates that "while DEP provides oversight to the Kentucky Nonpoint Source Pollution Control Program, KWA develops the watershed-based plan for Floyds Fork that is the subject of the MOA. Moreover, KWA has specific responsibility to establish the Steering Committee (page 6)." KWA is a private organization "with no connection to DEP to any other agency of the [Environmental and Public Protection Cabinet]." Section 1 on page 3 of the MOA, entitled "Obligations of the Cabinet," provides that DEP "shall provide general oversight of the MOA as it administers the Section 319(h) grant from the Environmental Protection Agency to the [EPPC]. This section of the MOA clearly demonstrates DEP's limited role in implementing the Plan."
On page 10 of the MOA is a section entitled "Public Involvement, " which "addresses the obligations of KWA and Floyds Fork Environmental Association (FFEA) to ensure 'significant public involvement in every aspect' of the Plan." According to Ms. Gruzesky, one of these obligations is to "schedule regular community meetings" throughout the grant time frame. "Like KWA, FFEA is not a part of DEP or the [EPPC], and therefore the Open Meetings Law does not apply." Relying upon the referenced language in the attached exhibits, Ms. Gruzesky asserts that "neither DEP nor DOW is a member of the Steering Committee, " and therefore it was "not within the authority of DEP or DOW to grant or deny" Ms. Thurman's request nor was it within the purview of the Open Meetings Act "(were it applicable to the meeting)."
By letter dated April 3, 2008, Ms. Gruzesky advised this office that one of the attachments to her written response "was in error in that the list of Steering Committee members sent" included the name of Peter Goodmann. As explained by Ms. Gruzesky, neither Mr. Goodmann nor any representative of the DOW serves on the Steering Committee. "Rather, [DOW] personnel regularly attend Steering Committee meetings, but are not members of this Steering Committee. " The KWA "is responsible for managing Steering Committee membership information." Attached to Ms. Gruzesky's letter is a copy of the corrected list (last updated on May 7, 2007).
Pursuant to KRS 61.846(2) and 40 KAR 1:030, Section 3, the undersigned counsel asked Mr. Goodmann to provide additional information to assist us in resolving the threshold issue of whether the Steering Committee is a public agency for purposes of the Open Meetings Act. More specifically, this office asked Mr. Goodmann to explain how the members of the Steering Committee were appointed and by whom, and to explain the process by which he came to preside over the meeting in question though neither he nor "any representative of the [DOW] sits on the Steering Committee. " After providing some context, Mr. Goodmann advised that "KWA applied to DOW for a § 319(h) grant and KWA was subsequently awarded a grant to develop a watershed-based plan. . . . The membership of the Steering Committee was recruited by [the FFEA], principally Tina Halbig, who is identified as a partner to KWA in this grant, as well as co-chair of the Steering Committee. " Mr. Goodmann is "uncertain as to how the final determination regarding the membership of the Steering Committee was made, but it would have been the responsibility of KWA. This is a committee by agreement to participate in the process (by invitation) . No person is appointed by any authority."
In addressing how it was that he came to preside over the Steering Committee meeting held on March 10, 2008, Mr. Goodmann explained:
My presence and role at that meeting were by agreement with KWA. As the administrator of the § 319(h) grant program I am responsible to ensure that grant projects are progressing toward a successful conclusion. Following my own observations, as well as reacting to discussions with numerous Steering Committee members, I was under the impression that progress toward a watershed-based plan that would reach consensus and be implemented was not likely. I raised the issue with KWA that DOW was considering cancelling the grant (as provided in the MOA) unless we could come up with a plan of action to better engage the Steering Committee membership in the plan development process. Several discussions and meetings between KWA (the grant recipient) and DOW (the grant provider) concluded that the process needed to change to be facilitated by an independent party (much had been made that FFEA and KWA could not successfully facilitate the process in the role of co-chairs and playing the role environmental advocates; they were not perceived as "neutral" by some Steering Committee members, which is critical in a consensus-building process), the process needed more time, and the process needed more funding (possibly available via re-obligation of unspent § 319(h) grant funds from other grant years). KWA and DOW developed a proposal on how to move forward and I was there presiding/presenting (as requested by and agreed upon with KWA, the grant recipient) with Judy Peterson, KWA Exec. Director, a tentative proposal to the Steering Committee [regarding] our ideas on how the project could move forward more successfully.
In relevant part, Mr. Goodmann concluded by clarifying that he objected to Ms. Thurman's request, "as the grant program manager," because it "had not been determined whether such meetings were subject to" the Open Meetings Act.
In response to Mr. Goodmann's explanation, Ms. Thurman notes that both Brooke Shiremen and John Eisininger of the DOW are listed as members of the Steering Committee. Referencing Ms. Gruzesky's response asserting "three times DEP/DOW is not a member of the Steering Committee" as evidenced by the attached exhibits, Ms. Thurman relies on the same documents in support of her position that "DEP/DOW is a member of the Steering Committee. " More specifically, Ms. Thurman observes that Angela Kessans, Salt River Basin Coordinator, who "is employed by the [DOW] and works for Peter Goodmann" in that capacity is also listed. 1 By letter dated April 9, 2008, Ms. Thurman asserts her opinion that the attached copy of the agenda from the meeting held on March 10, 2008, "demonstrates the involvement of the [DOW] beyond that of general oversight. This involvement is personified by Mr. Peter Goodmann." While Ms. Thurman's assertion regarding the apparent level of involvement by Mr. Goodmann and the role being played by the DOW is not without foundation, the fact remains that the Steering Committee cannot properly be characterized as a public agency within the meaning of KRS 61.805(2); in other words, the level of involvement is not legally determinative.
For purposes of the Open Meetings Act, "public agency" is expansively defined at KRS 61.805(2) as:
(a) Every state or local government board, commission, and authority;
(b) Every state or local legislative board, commission, and committee;
(c) Every county and city governing body, council, school board, special district board, and municipal corporation;
(d) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(e) Any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government;
(f) 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;
(g) 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; and
(h) Any interagency body of two (2) or more public agencies where each "public agency" is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection[.]
On July 1, 2006, the Commonwealth of Kentucky, Environmental and Public Protection Cabinet, Department for Environmental Protection, Division of Water and the Kentucky Waterways Alliance, Inc. entered into the referenced Memorandum of Agreement, Section 1.1 of which provides:
The Cabinet, as the lead oversight agency for the Kentucky Nonpoint Source Pollution Control Program, developed a Section 319(h) Kentucky Nonpoint Source Implementation Grant Workplan for Federal Fiscal Year (FFY) 2003. The Workplan describes projects that shall partially implement the Kentucky Nonpoint Source Management Program. Subsequently, the U.S. Environmental Protection Agency (EPA) approved the Workplan and, to enable implementation of the projects described therein, awarded a grant to the Cabinet through the Section 319(h) Nonpoint Source Implementation Program Cooperative Agreement (C # 9994861-03) for FFY 2003, which is subject to the terms and conditions of the approved Workplan. This Memorandum of Agreement assigns implementation of one of the Workplan Project Applications, "Floyds Fork Comprehensive Watershed-Based Plan" to the KWA. The Cabinet shall provide general oversight on this agreement , ensuring the conditions and obligations set forth herein are met. The Cabinet shall also provide technical and administrative assistance and periodically review progress and make recommendations.
(Emphasis added.) Under Section 2.1 of the MOA, entitled Obligations of the KWA, the " lead agency for this project is the KWA ." (Emphasis added.) The goal of the KWA for this project is "to develop a Watershed Based Plan (WBP) for Floyds Fork that, if fully implemented, shall restore and protect designated uses in the watershed. The KWA shall conduct this plan of work as outlined in their EPA approved Project Application ," which is incorporated into the MOA by reference. (Emphasis added.)
According to its website, www.kyalliance.org , the KWA "is an outgrowth of a series of meetings sponsored by the Kentucky Environmental Quality Commission. The first statewide meeting was held in Georgetown, Kentucky, in April of 1991, and "drew over 80 representatives from government, industry, community organizations, and individuals from across the state." On December 5, 1992, those in attendance at the second statewide meeting established a formal organization "to promote networking, communication, and mutual support among groups, government agencies, and businesses working on waterway issues." Of particular significance here, this organization was incorporated April 14, 1993, and the IRS granted nonprofit status on November 2, 1993.
Despite the expansive language of KRS 61.805(2), and the legislative intent for the Act to be strictly construed so as to avoid unauthorized secret meetings of public agencies, the Attorney General has long recognized that a private, nonprofit corporation is not a public agency for purposes of the Open Meetings Act. In 03-OMD-037, for example, this office held that the Kuttawa Relocation Foundation, Inc., formed as a private, nonprofit corporation "'to aid in the plans of the city of Kuttawa for relocations which were made necessary by the construction of Barkley Dam and the formation of Lake Barkley,'" was not a public agency within the meaning of KRS 61.805(2), and therefore was not subject to the requirements of the Open Meetings Act. See also OAG 75-402 (community mental health board established by a nonprofit corporation is not a public agency) ; OAG 78-395 (county water association that was established as a nonprofit corporation is not a public agency) ; OAG 79-560 (rural electric cooperative, formed pursuant to KRS Chapter 279 as a nonprofit corporation, is not subject to the Open Meetings Act) ; 98-OMD-174 (a committee of a private, nonprofit professional association of physicians that oversees county ambulance service is not a public agency under the Open Meetings Act) ; 01-OMD-34 (Kentucky Bourbon Festival, Inc., a private, nonprofit corporation formed for the purpose of "directing the celebration . . . of all facets of the bourbon industry" is not a public agency within the scope of the Act). As evidenced by the foregoing, the KWA is the entity charged with implementation of the Plan, but is not itself a "public agency" in the relevant sense.
Section 4 on page 6 of the MOA provides that a "Steering Committee shall be formed to provide overall direction, identify funding opportunities and produce the WBP document. The Floyds Fork Environmental Association and the KWA shall co-chair the Steering Committee ." (Emphasis added.) Members of the Committee " shall include key policy-makers from each county and the co-chair of the Technical Advisory Committee (TAC) and the Land Use Committee (LUC). . . . Quarterly meetings of each committee shall be held . These groups shall develop measurable milestones for gauging project success." (Emphasis added.) Similarly, the Steering Committee "shall develop action plans which outline specific goals and needs of the project. . . . KDOW shall be invited to participate in these committees ." (Emphasis added.) In other words, participation by the DOW, as indicated by Mr. Goodmann, is by invitation or voluntary.
According to its website, www.hiddenholloworchard.com , the FFEA "consists of a group of concerned citizens from several counties and from many of [sic] walks of life and professions. The common concern is maintaining the integrity of Floyds Ford Creek." It suffices to say that the FFEA is an organization comprised of volunteers which has none of the indicia of a "public agency. " In accordance with the MOA, Judy Peterson, Executive Director of the KWA, and Teena Halbig, Co-Chair of the FFEA, are named as co-chairs of the Steering Committee on the membership list provided by Ms. Gruzesky. Other entities represented on the Steering Committee are: Bullitt County, Louisville Metro, Louisville Metro Health Department, Louisville/Jefferson County MSD, Henry County, Oldham County, Oldham County Sewer District, Shelby County, City of Hillview, City of Jeffersontown, City of LaGrange, City of Middletown, City of Mount Washington, Homebuilders Association of Louisville, 21st Century Parks, Kentucky Association of Counties, Kentucky League of Cities, Natural Resources Conservation Service, and the University of Louisville, some of which are public agencies, others of which are not. In addition, Pamla Wood, PW Consulting, is the Land Use Committee Advisor, Karen Schaffer, FMSM Engineers, is the Technical Advisory Committee Advisor, and Ms. Kessans, Salt River Basin Coordinator, is listed as a Steering Committee Advisor. Along with representatives of the "Property owners," FMSM Engineers, and Louisville Metro Parks, Ms. Shireman and Mr. Eisininger of the DOW are named as "Others." While the DOW is unquestionably a "public agency, " its status is neither in question nor determinative standing alone insofar as the DOW is but one of multiple entities represented on the Steering Committee. Moreover, representatives of the KWA and the FFEA, neither of which is a public agency, are designated as leaders of the Committee by the mandatory and express terms of the governing MOA.
When viewed in light of KRS 61.805(2), the record as a whole compels a finding that the Steering Committee is not a "public agency. " Subsections (a), (b), (c), and (h) are facially inapplicable on the facts presented. Because the Steering Committee itself has no governing body, KRS 61.805(2)(f) is inapposite. Likewise, some of the entities represented on the Steering Committee may be public agencies within the parameters of KRS 61.805(2)(d) or (e), or perhaps other subsections of KRS 61.805(2) for that matter, but the Steering Committee itself is not. Membership is voluntary and by invitation rather than by statute, executive order, ordinance, resolution, or other legislative act. Finally, the Steering Committee cannot properly be characterized as a board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency that is established, created and controlled by a public agency within the meaning of KRS 61.805(2)(g). Insofar as a public meeting "in part involves a quorum of the members of a public agency at which any public business is discussed or at which any action is taken by the agency" under KRS 61.805(1) and KRS 61.810(1), a meeting of "a group of public officials, employees, and officers from various governmental entities [and, in this case, non-governmental entities] where none of these entities is represented by a quorum and where the group does not exist pursuant to statute, ordinance, order, resolution, or any act of any public agency does not constitute a meeting of a public agency" governed by the provisions of the Open Meetings Act. 96-OMD-174, pp. 1, 2. See 94-OMD-148; 00-OMD-141. Compare 97-OMD-139; 98-OMD-96; 99-OMD-77.
In light of this determination, the Steering Committee cannot be said to have violated the Open Meetings Act during the meeting held on March 10, 2008, regardless of whose account is completely accurate concerning the recording issue or any related factual disputes.
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 In the section of the MOA entitled "Public Involvement, " it provides that the Salt River Basin Coordinator "is also a project partner who shall help assure that the Salt River Basin Team is informed and kept a part of developing the Plan." However, the fact Ms. Kessans is a member of the Committee does not alter the analysis or compel a different conclusion.