Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Cumberland City Council violated provisions of the Open Meetings Act when, on January 30, 2009, it engaged in a secret meeting of a quorum of the members of the Council at which public business was discussed or in a series of less than quorum meetings where the members attending one or more of the meetings collectively constituted at least a quorum of the members of the public agency. For the reasons that follow we find that the Council contravened the Act under either factual scenario.
In a complaint dated February 27, 2009, council person Carl Hatfield alleged that on January 30 Mayor Loretta Cornett "and four active council members conducted a meeting with a representative from HMB Professional Engineers" without notice to Mr. Hatfield, the press, or the public. As a means of remedying the alleged violation, Mr. Hatfield proposed that he "be afforded a complete record" of the meeting. Mr. Hatfield tendered his request to the city on February 27, 2009. He initiated this appeal on March 4, 2009.
On appeal, Mr. Hatfield explained that he received "a communication from Bob Blankenship of HMD Professional Engineering, dated February 6, 2009, . . . that alerted [him] to the meeting." Mr. Hatfield provided this office with a copy of the letter, addressed to Mayor Cornett, in which Mr. Blankenship thanked the Mayor "and [her] council members for meeting with [him] on January 30, 2009." He described the qualifications of his company "for engineering services associated with the needs of Cumberland and its customers," and indicated that he looked forward "to the opportunity to exchange ideas and further discuss options for the City." Prompted by this communication, on February 24 Mr. Hatfield attempted, unsuccessfully, "to gather information concerning this meeting." On the same day, he called Mr. Blankenship to confirm that the meeting occurred, to ascertain who was present, and to determine what was discussed. In a taped telephone conversation with Mr. Hatfield, Mr. Blankenship confirmed that on January 30 a meeting occurred at which, he, the mayor, "Mark," and as many as four council members were present, and that during the course of the meeting he suggested how HMB could assist the city in obtaining loans and grants.
In correspondence directed to this office following commencement of the appeal, Cumberland City Attorney S. Parker Boggs denied Mr. Hatfield's allegations, explaining that although "individual council members stopped by into City Hall at different intervals while Mr. Blankenship was there," the latter was "merely introducing his engineering firm should the City ever need his services." It was the City's position that "[t]here was no meeting, no minutes, no quorum, and no specific public business that was discussed." Mr. Boggs reasoned:
The Act requires a two-prong test for any purported violation. First, the meeting must be of a quorum, or a majority of the public agency's members. This was not the case as Mr. Bob Blankenship met with council members at various times individually because the council members were in and out of the room at different times during this conference. Second, the meeting must be one where "public business is discussed" or "action is taken." This is not the case as there was no specific public business discussed and no action taken. In addition, a "gathering" of a quorum where there is no discussion of public business or no action taken would not be subject to the Open Meetings Act.
In support, he submitted the affidavits of council members Eugene Stagnolia, Jerry and Yvonne Gillian, and Norma Bowyer, each of whom acknowledged being present during all or part of the discussion with Mr. Blankenship, but denied participation in a meeting. Because the Open Meetings Act prohibits both "a quorum from discussing public business in private" and "meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act," we find that the participating council members violated KRS 61.810(1) if they engaged in a single secret meeting of a quorum of the council's members. Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 474 (Ky. 1998). Although we cannot determine their subjective intent, the participating council members otherwise violated KRS 61.810(2) if they engaged in a series of less than quorum meetings and the members attending those meetings collectively constituted a quorum.
The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), states 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, except for the following:
Addressing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, 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.
In construing these provisions, the Kentucky Supreme Court has declared that "[t]he 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 meetings requirements of the Act." Yeoman at 474. Violation of the Open Meetings Act, insofar as it relates to "secret meetings," is thus predicated on two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken, and (2) a series of less than quorum meetings attended by members of the agency collectively constituting a quorum and held for the purpose of circumventing the requirements of the Act. Although the term "meeting" is broadly defined at KRS 61.805(1) as "all gatherings of every kind . . . 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," in Yeoman the Court observed:
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).
Yeoman at 474.
The record on appeal contains conflicting evidence as to the concurrent or consecutive presence of a quorum of the members of the council. The council members concede that a quorum was present in consecutive meetings with Mr. Blankenship. Mr. Blankenship's recollection, as reflected in his taped telephone conversation with Mr. Hatfield, was that as many as four council members were present in a single meeting. Clearly then, a single gathering of a quorum of the members of the agency occurred or a series of less than quorum gatherings occurred where the members attending one or more of the gatherings collectively constituted a quorum. The first element of a violation of KRS 61.810(1) and/or (2) is therefore firmly established.
In Yeoman, the Supreme Court recognized that "[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.) "Public business," the Court admonished, "is not any discussion between two officials of the agency . . . [, but] the discussion of the various alternatives to a given issue about which the [agency] has the option to take action." Clearly, discussions relating to the qualifications and hiring of a company for the purpose of providing engineering services that include collection systems, treatment facilities, stormwater engineering, and construction administration fall within the scope of this definition of the term "public business. " This was not a discussion of world events or a local football game, issues about which the Council has no option to take action, but was, instead, a discussion of matters directly or indirectly related to an issue upon which the Council has the option to act. The exclusion of some council members, the press, and the public from this discussion established the second element of a violation of KRS 61.810(1) and/or (2).
KRS 61.810(2) contains a third element. That element relates to intent. It requires a showing that the gatherings "are held for the purpose of avoiding the requirements of [the Open Meetings Act] ." As noted, the Attorney General has acknowledged the difficulties associated with determining the subjective intent of the meeting participants, but has generally found that the series of less than quorum meetings otherwise fell within the zone of conduct prohibited by KRS 61.810(2). 1 If proof of intent to circumvent the requirements of the Act was adduced, this office has found that the participants violated KRS 61.810(2). 2 Thus, at page 3 of 94-OMD-106, this office stated that the enactment of 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. " See also 02-OMD-153; compare 02-OMD-107.
If four members of the Cumberland City Council met with the Mayor and Mr. Blankenship to discuss his company's proposal to provide engineering services, that meeting constituted a violation of KRS 61.810(1). The fact that no minutes were kept, in contravention of KRS 61.835, only exacerbated the violation. If, as the council members maintain, they came or went in numbers less than a quorum, but collectively constituting a quorum, and if the meetings were held to avoid the requirements of KRS 61.810(1), their actions constituted a violation of KRS 61.810(2). We acknowledge our inability to determine the council members' purpose, and that there is no empirical means by which we can establish subjective intent. Nevertheless, we find that, at a minimum, their actions offended two of the three elements of KRS 61.810(2).
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 See 03-OMD-092.
2 94-OMD-106.