Request By:
Patty Wallace
Jeff May
Laura Parker
Timothy Crawford
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Lawrence County Board of Education violated the Open Meetings Act at its June 30, 2008, regular meeting by continuing to discuss public business after adjournment. We find that the conflicting evidentiary record precludes a determination that the Board violated the Open Meetings Act. Nevertheless, such post-adjournment discussions, if they did in fact occur, would clearly contravene the provisions of the Open Meetings Act.
On September 15, 2008, Patty Wallace submitted a written complaint to Jeff May, Superintendent of Lawrence County Schools, who forwarded it to the Lawrence County Board of Education. In her complaint, Ms. Wallace asserted that after the Board's June 30, 2008, meeting had adjourned, the Superintendent and four board members sat around a table in the conference room, and she heard the Superintendent tell them: "Some of our administrators felt threatened by some people in the audience at the last board meeting. " In her complaint she charged:
You were conducting public business with a quorum after the meeting had been adjourned in contravention of KRS 61.810(1). You made the decision to no longer allow any public comment at board meetings. No vote was taken before this action was put in place at the next board meeting where you had a uniformed policeman present. I was at the previous regular meeting and saw no threats.
As a means of remedying the alleged violation, Ms. Wallace proposed that the Board discuss the matter at the next school board meeting and agree to comply with all the open meetings laws at all future board meetings.
By letter dated September 17, 2008, Timothy Crawford, counsel for the Board, responded to Ms. Wallace's complaint on behalf of the Board. Mr. Crawford advised:
Under KRS 61.846(1) , you must deliver your complaint to the presiding officer of the public agency. Superintendent May is not the presiding officer of the Lawrence County Board of Education. KRS 160.160(1) indicates the board is to elect a Chair of the Board and Laura Parker is the current Chairperson of the Board. Under KRS 160.370, Superintendent May is the executive agent of the Board, not the Board's presiding officer.
Under KRS 161.290(1), the board of education is responsible for the general control and management of the school district, not the Superintendent and, under KRS 160.270(1), the Board is responsible for calling and conducting meetings, not the Superintendent.
Nonetheless, Superintendent May forwarded your complaint to Chairperson Parker on Monday, September 15, 2008.
Both the Board and Superintendent May deny that they violated KRS 61.810(1) after the June 30, 2008 Board meeting. A number of people were present after the Board had adjourned and numerous people were conducting various conversations in the room as they were preparing to leave the adjourned meeting. Thus they deny a violation of KRS 61.810(1) as they were not discussing public business after the June 30, 2008 meeting.
Superintendent May was told by some of his staff after other meetings that they did feel threatened by some of the audience in attendance.
Superintendent May did not make a decision to "? no longer allow any public comment at board meetings." The Board is responsible for the general control and management of the school district, KRS 161.290(1), and the Board is vested with the statutory power to adopt rules and policies for its meetings under KRS 161.290(2).
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As stated above, Superintendent May relayed your complaint and proposed remedy to Chairperson Parker and the Board. Your proposal asking the Board to "? agree to comply with all the open meetings laws at all future meetings" was accepted and the Board voted as follows:
On September 30, 2008, Ms. Wallace submitted an amended complaint to the Chairperson of the Lawrence County School Board, reiterating her complaint that the Board had conducted public business with a quorum of its members after the adjournment of the June 30, 2008, meeting in violation of KRS 61.810(1). In addition, Ms. Wallace asserted that one board member admitted to her after the meeting that Superintendent May did bring up that business, but now says he cannot remember. She also provided an affidavit from another board member that stated he heard the Superintendent relating to the board members, after the adjourned meeting, that some of the administrators felt threatened at the last board meeting by some members of the audience.
Responding to Ms. Wallace's amended complaint on behalf of the Board, Mr. Crawford adopted, reiterated, and, incorporated by reference, its September 17, 2008, response to Ms. Wallace's original complaint, which denied that a violation of the Open Meetings Act had occurred. On October 9, 2008, Ms. Wallace initiated the instant appeal.
In a supplemental response to this office after the commencement of Ms. Wallace's appeal, Mr. Crawford again adopted the Board's responses as the Board's position on the complaint. In addition, he further advised that the Board had considered Ms. Wallace's complaint at its meeting on September 15, 2008, and voted as she recommended in her September 15, 2008, complaint to agree to comply with all the Open Meetings laws at all future board meetings.
The record on appeal reflects two opposite narratives of the events that occurred after the adjournment of the June 30, 2008, Board meeting. Ms. Wallace asserts that the Superintendent and four board members sat around a table in the conference room after the meeting had adjourned and she heard the Superintendent tell them: "Some of our administrators felt threatened by some people in the audience at the last board meeting. " Conversely, the Board maintains that there were members present after the Board had adjourned; that numerous people were conducting various conversations in the room as they were preparing to leave the adjourned meeting; but denied that a violation of KRS 61.810(1) had occurred as they were not discussing public business after the adjourned meeting. Given this factual disparity, we cannot conclusively resolve the open meetings issue presented by this appeal. We are not empowered to engage in independent fact-finding or to consider information that does not appear in the record, and the conflicting statements in that record preclude us from finding that the Board violated the Open Meetings Act.
KRS 61.810(1) provides:
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.
In
Yeoman v. Commonwealth of Kentucky Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court addressed the issue of a quorum of members being in the same place and at the same time and whether such a gathering constituted a violation of the Open Meetings Act, stating:
Under the Open Meetings Act ("Act"), KRS § 61.800 et seq ., "[a]ll meetings of 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, shall be public meetings, open to the public at all times . . . ."
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To guide this Court in interpreting the Act is the legislative statement of policy, KRS § 61.800, which states that "the formulation of public policy is public business and shall not be conducted in secret." And that the exceptions to the Act are to be "strictly [and narrowly] construed."
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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.
For a meeting to take place within the meaning of the [A]ct, 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 requirement of the Act. KRS § 61.810(2). . . .
In 01-OMD-30, this office addressed the Yeoman decision and prior decisions of the Attorney General on this same issue, offering this discussion:
The Supreme Court's decision in Yeoman synthesizes some twenty-six years of open meetings decisions issued by the Kentucky Attorney General under a general grant of authority prior to 1992, and a specific grant of authority after 1992. 1 In 1978, for example, the Attorney General stated that a quorum of the members of a public agency may attend a professional or social event, such as a convention sponsored by an entity other than the agency itself, without triggering the requirements of the Open Meetings Act. OAG 78-634. Elaborating on this view, in 95-OMD-136 the Attorney General held that Kentucky law does not require "a conclusion that attendance of a quorum of the members of a public body at a convention or conference organized by someone other than the public agency constitutes a meeting of the public agency. " Nevertheless, this office admonished that agency members "attending such a convention or meeting are not authorized to take action affecting [the agency they represent] nor are they permitted to discuss matters directly affecting their [agency]." 95-OMD-136, p. 3. Finally, in 00-OMD-147, the Attorney General found that no violation of the Open Meetings Act occurred notwithstanding the fact that a quorum of the members of the council met at a local restaurant after the meeting. Critical to our decision were the sworn statements of the council members that public business was not discussed, and the lack of evidence to controvert these statements.
Conversely, in a series of decisions also dating back to 1978 the Attorney General has recognized that even a casual gathering of a quorum of the members of a public agency triggers the requirements of the Open Meetings Act if public business is discussed or action is taken. OAG 78-411. Thus, in OAG 80-81 we stated that a city council violated the Act when a quorum of its members met before a regular meeting and decided among themselves how they would vote on a matter subsequently brought before the council at the meeting. Similarly, in OAG 83-102 we held that an agency "committee" comprised of a quorum of the agency's members, along with several others, could not discuss the agency's business in private, reasoning:
OAG 83-102, p. 3, citing Courier-Journal v. University of Louisville, 596 S.W.2d 374 (Ky. App. 1980). In 94-OMD-50 we held that a quorum of the members of a fiscal court violated the Open Meetings Act when they met in the magistrates' office to review matters involving the county. Finally, in 95-OMD-64 the Attorney General concluded that a work session attended by a quorum of the members of a public agency was a public meeting within the Act's contemplation, despite the fact that no action was taken. See also, 99-OMD-213.
As noted, the record on appeal contains two widely disparate factual narratives. This office is not equipped to resolve this disparity. We therefore cannot conclusively determine if the Board violated the Act. If, however, additional public business was discussed by a quorum of the Board, after the June 30, 2008, meeting had been adjourned, such action by the Board would constitute a violation of the Open Meetings Act. See, e.g., 98-OMD-74; compare 00-OMD-147.
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 That grant of authority is codified at KRS 61.846(2).