Request By:
Leonard Wilson
Anthony Henderson
Leah N. Hawkins
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the City of Jeffersonville violated the Open Meetings Act in failing to respond to the written complaint of Leonard Wilson and whether the City violated the requirements of the Act in failing to approve the purchase of a lawnmower in public meeting.
By letter dated May 19, 2008, Mr. Wilson submitted a written complaint to City of Jeffersonville Mayor Anthony Henderson alleging a violation of the Open Meetings Act had occurred when the City failed to conduct a public meeting to let the public know that the City's lawnmower had been stolen and that a new one had been purchased. He argued that any business matters or purchasing of any item is to be approved by the public at a public meeting.
In his letter of appeal, Mr. Wilson advised that he had received no written response to his complaint.
After receipt of notification of the appeal, Leah Hawkins, attorney for the City, provided this office with a response to the issues raised in the appeal. In her response, she advised:
The purchase of a lawnmower utilizing funds from insurance for the theft loss of $ 6,500.00 and an additional $ 3, 900.00 did not require the city to engage in a competitive bidding process or secure commission vote for approval. Mr. Wilson was incorrect in his statement that any business matters or purchasing of any item is to be approved by the public at a public meeting. No "meeting" was conducted as defined by KRS 61.805(1).
The City has the authority to make replacement purchases for stolen items. It is the City's position that there was no violation of the Open Meetings Law.
To begin, the City's failure to respond to Mr. Wilson's complaint constituted a violation of the Open Meetings Act. KRS 61.846(1) provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint, and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The City failed to issue a written response to Mr. Wilson's complaint and, thus, committed a procedural violation of the Open Meetings Act.
Next we address the issue as to whether the City violated the Open Meetings Act in failing to approve the purchase of the lawnmower in a public meeting. In its response to this office, the City advised that the purchase of the lawnmower did not require the city to engage in a competitive bidding process or to secure commission vote for approval. The City, operating as a commission plan form of government, is governed in part by KRS 83A.140, which describes the duties of the mayor and the commission. KRS 83A.140(4), in relevant part, provides:
The mayor shall preside at all meetings of the commission and may vote in all proceedings. All bonds, notes, contracts and written obligations of the city authorized by ordinance or resolution shall be executed by the mayor on behalf of the city . . . .
(Emphasis added). Accord OAG 84-50 (wherein this office recognized that, pursuant to KRS 83A.140(4), the mayor of the City of Jeffersonville, under the commission form of government, had these powers). The City advised this office that it had the authority to make replacement purchases for stolen items. Assuming that the City has, in fact, by ordinance or resolution authorized the mayor to execute bonds, notes, contracts and written obligations on behalf of the City, the mayor had the authority to purchase the lawnmower without the approval of the commissioners. Under these circumstances, the City would not be required to hold a regular or special meeting to approve the purchase.
Mr. Wilson asserts and provided a newspaper article that reported that the purchase of the lawnmower was approved by three commissioners. He argues that this was conducting public business outside a public meeting.
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, 1 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).
More importantly, Kentucky's Supreme Court has 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).
Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998) (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 .
In the instant appeal, the mayor advised the commissioners of the purchase of the lawnmower, but it appears such action did not require a public meeting, insofar as the mayor apparently enjoyed unilateral authority to make the purchase. Because a public discussion of the purchase was not required, the mayor cannot be said to have violated KRS 61.810(2) when he told three Commission members about the purchase. To hold otherwise would lead to the inescapable conclusion that the mayor cannot communicate on any topic with the members of the commission outside of a public forum. Therefore, assuming the existence of an ordinance or resolution authorizing the mayor's action, we find that the City did not violate the Open Meetings Act in failing to approve the purchase of a lawnmower in a public meeting.
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.
Footnotes
Footnotes
1 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 . . . ."