Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Butler County Fiscal Court violated the Act, and that it thereafter largely conceded those violations as alleged by Robert D. Cron in complaints submitted to Judge/Executive David Fields on December 15, 2008. 1 Mr. Cron alleged, and the Fiscal Court acknowledged, that violations occurred with regard to special meetings of the committee appointed to review the Sheriff's proposed budget insofar as the committee failed to follow the notice requirements of KRS 61.823. Although the Fiscal Court did not acknowledge the violation, Mr. Cron also alleged that its members engaged in a series of less than quorum meetings for the purpose of circumventing the requirement of public discussion of the Sheriff's budget. On appeal, Mr. Cron concedes that several of the issues he raises are not justiciable under the Open Meetings Act, indicating that his objective in raising them "is to give the Attorney General's Office some added insight as to why the Open Meetings Act has been repeatedly violated." While it is apparent that Mr. Cron has invested significant time and effort in attempting to bring the Fiscal Court into strict compliance with the law, this office must decline comment on the non-open meetings issues. 2
KRS 61.805(2)(g) defines the term public agency as:
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[.]
The Butler County Fiscal Court is a public agency within the meaning of KRS 61.805(2)(c), and any committee established, created, and controlled by it is a public agency pursuant to KRS 61.805(2)(g). See, e.g., Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (Ky. 1987) (holding that the presidential search committee created by action of the Board of Trustees of the University of Kentucky, a public agency created by statute, is itself a public agency) ; OAG 91-54 (holding that a committee created by the Mercer County Fiscal Court to consider proposals relating to planning and zoning is a public agency) ; 93-OMD-49 (holding that a three member grievance committee appointed by the Mayor of the City of Scottsville is a public agency) ; 95-OMD-124 (holding that an emergency medical services committee appointed by the Boyle County Judge/Executive is a public agency) ; and 98-OMD-96 (holding that a sign committee created by the City of Madisonville zoning administrator is a public agency) ; 99-OMD-77 (holding that a finance and budget committee created by Franklin County Fiscal Court as an advisory body is a public agency as defined in KRS 61.805(2)(g)).
Based on the overwhelming weight of legal authority, we find that the budget committee's actions constituted a violation of the Open Meetings Act. The Fiscal Court does not contest the budget committee's status as a public agency and has acknowledged its past errors and continuing obligation to comply with the requirements of the Open Meetings Act, including KRS 61.823, relating to notice of special meetings. The seriousness of these violations cannot be overstated, and we strongly urge the Fiscal Court to rededicate its energies to strict compliance with the requirements of the Act.
With reference to Mr. Cron's allegations concerning a series of less than quorum meetings held in advance of the December 11, 2008, meeting at which a revised Sheriff's budget was approved, we refer the parties to KRS 61.810(2), enacted in 1992, which 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. 03-OMD-092, p. 3. That statute 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, 3 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:
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.)
In Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998), Kentucky's Supreme Court 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) (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.; compare, 00-OMD-63 (holding that a series of less than quorum meetings with the county judge/executive to discuss possible jail site fell within the zone of conduct prohibited by KRS 61.810(2)); 98-OMD-18 (holding that KRS 61.810(2) did not authorize "informal" meeting of newly appointed water district commissioners with commissioners from merged water district where quorum of members of district were present and public business was discussed, notwithstanding claim that a meeting was held only for the purpose of educating new members).
Mr. Cron alleges that the Fiscal Court members discussed the Sheriff's budget outside of a public forum in a series of less than quorum meetings, or a secret meeting of a quorum, arriving at a predetermined outcome before a vote was taken at the public meeting. In support, the Sheriff submits an affidavit in which he states that the County Treasurer advised him that the County Judge talked about the Sheriff's budget "with the Magistrates at different time." The Fiscal Court members flatly deny this allegation and have furnished affidavits so stating. Because the record on appeal contains conflicting evidence relative to Mr. Cron's allegation, we cannot conclusively resolve this issue. Suffice it to say that where there are a series of less than quorum meetings in which public business is discussed, and where the members attending one or more of the meetings collectively constitute a quorum of the members of the counsel, that series of less than quorum meetings constitutes a violation of KRS 61.810(2), if the meetings are held for the purpose of avoiding the requirements of KRS 61.810(1). Thus, if such conduct has occurred, or is occurring, it must cease.
Having so determined, we note that the Attorney General is not empowered to declare the Butler County Fiscal Court's or its committee's actions null and void. As we have so often noted, our review is confined to the issue of whether the agency violated the Open Meetings Act and not the remedial measures it implements. 98-OMD-74; see, KRS 61.846(2) providing that the Attorney General shall issue "a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850"; see also, 93-OMD-49, 93-OMD-81, 94-OMD-83, 94-OMD-111, 98-OMD-74. Thus, "the Attorney General cannot void actions taken or impose penalties for violations of the Open Meetings Act, only the circuit court can do that." 97-OMD-90, p. 4. Nevertheless, we trust that the Fiscal Court, having acknowledged at least in part its error, will bear these observations in mind in conducting future meetings.
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 Mr. Cron apparently submitted a third complaint to Judge Fields on April 23, 2008, in which he alleged violations of the Open Meetings Act at a meeting conducted on April 21. It is unclear how that complaint was formally resolved. Because Mr. Cron did not appeal the Butler County Fiscal Court's disposition of this complaint within sixty days of his receipt of the Fiscal Court's written denial, or, if the Fiscal Court refused to provide a written denial, within sixty days from the date his complaint was submitted to Judge Fields, that portion of his appeal relating to the April 21 meeting is time-barred. By virtue of KRS 61.846(2), the Attorney General is statutorily foreclosed from rendering an open meetings decision on the legality of the meeting.
2 These issues include, inter alia, restriction on public comment at Fiscal Court meetings.
3 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 . . . ."