Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this Open Meetings appeal is whether Bowling Green Municipalities violated the Kentucky Open Meetings Act in the disposition of Robert E. Taylor III's complaint regarding the failure of three BGMU employees, which he referred to as the "Insurance Committee," to conduct their meeting(s) in accordance with the Act by, among other things, failing "to give notice of its meeting times and places to the public (KRS 61.820; 61.823)," and failing to "record minutes of its meetings and make those minutes available to the public (KRS 61.835)." More specifically, the determinative question presented is whether three BGMU employees acting within the scope of their employment in reviewing the bids received in response to a Request for Proposals for Insurance Agency/Agent before gathering to combine their tabulations, which formed the basis of the General Manager's recommendation to the Board, constitute a "public agency" within the meaning of KRS 61.805(2). Because the employees/staff members were not constituted as a committee that was "established, created, and controlled" by a public agency, as required under KRS 61.805(2)(g), nor do they otherwise fall within the scope of KRS 61.805(2), they cannot properly be characterized as a "public agency" for purposes of the Open Meetings Act.
On January 6, 2009, Mr. Taylor directed his written complaint to BGMU Human Resources Director Jill Hartley, Purchasing Agent Keith Williams, and General Manager Mark Iverson in their "individual and joint capacities as members of a committee known as the 'Insurance Committee' of BGMU, said Committee being known to be involved in the process of purchasing insurance and employee benefits." In his complaint, Mr. Taylor alleged that the aforementioned employees "act[] as an advisory committee, " making recommendations to the Board regarding these matters. He further alleged that during the October 13, 2008, Board meeting, "the three known members" were present and made a recommendation to the Board regarding the selection of an insurance agent/ agency to handle BGMU's various group life and long-term disability insurance plans. Finally, Mr. Taylor alleged that the Board "adopted the recommendation of the Committee, without modification, during that meeting." Mr. Taylor also believes that "some sort of written communication of its recommendation to the Board" may have been provided "in advance of the regular October meeting."
While "casual observation suggests" that the alleged "Committee" exhibited a "general disregard" of the Act, Mr. Taylor has firsthand knowledge of the alleged failure to comply with KRS 61.820, 61.823, and 61.835 , which prompted his complaint. Based on "reasonable conclusions from information available" to him, such as references to a "Committee" found in "several insurance-related" requests for proposals, Mr. Taylor alleged that the "Committee" has been involved "to some degree in requesting bids/ proposals, analyzing the bids/ proposals received, and making recommendations to the [Board] for at least three years." To remedy the alleged violations, Mr. Taylor proposed thirteen (13) different actions, including that BGMU "fully restore agent of record status" to him and "renew its coverage with United of Omaha for calendar year 2009," that BGMU "set aside all activities, recommendations, or other work or work product of the Insurance Committee for the past 12 months," and that BGMU agree to provide him "with notice of all special meetings of the [Board], committees, or other groups that have any agenda item related to insurance or employee benefits, until December 31, 2011."
By letter dated January 13, 2009, Elizabeth W. Burt, of Bell Orr Ayers & Moore, PSC, responded on behalf of BGMU as follows:
BGMU Board of Directors did not establish, create, appoint or control a Committee to act on [its] behalf with respect to the insurance agency/agency procurement, and did not delegate any of [its] functions or decision making authority. The [Board] voted during its October 13, 2008 Board Meeting, which was open to the public, to employ an insurance agency/agent. You were present at this Board meeting. [Emphasis added.]
As you know, during the October 13, 2008 meeting of the [Board], BGMU General Manager, Mark Iverson, informed the Board of the process that led to his recommendation to the Board with respect to which insurance agency/agent he would like the Board to employ. Mark Iverson indicated that three BGMU staff members reviewed and evaluated the proposals received independently of each other, and then met to combine their tabulations, which became the foundation for the recommendation to the [Board]. [Mr. Iverson] was the individual responsible for asking the other BGMU employees to review the proposals. Neither the General Manager nor the other employees reviewing the proposals were members of the [Board], and none of them had been appointed to a [Board] Committee by the [Board]. Furthermore, none of these employees, including the General Manager, had any authority to bind the [Board] or the [U]tility with respect to the employment of the insurance agency/agent. Rather, these employees performed administrative functions for the [U]tility, acting within the scope of their employment to review the bids received in response to the Request for Proposals for Insurance Agency/Agent to Represent BGMU and provide services pertaining to Group Life, AD&D, VTL and LTD Insurance Coverage, and the General Manager combined tabulations to create his recommendation to the [Board]. Recommendations have no binding effect upon BGMU. [Emphasis added.]
You allege that the Kentucky Open Meetings Act was violated because meetings between or among BGMU employees in reviewing and/or formulating a recommendation to the [Board] were not made public. Your allegation is totally without merit.
Relying upon prior decisions of this office, Ms. Burt further argued that "the administrative functions of the employees of a public agency are not subject" to the Open Meetings Act. Quoting from 04-OMD-148, she asserted that the Act "'is not intended to apply to a meeting of a Board Member and an employee(s) of the Board. To hold otherwise would reach an absurd result.'" In Ms. Burt's view, that is especially true in this case as the communications that Mr. Taylor "complains of were not even between a BGMU Board Member and an employee, but were rather all internal communications between BGMU employees performing their administrative functions in reviewing proposals submitted to the [U]tility. " Based upon the foregoing, BGMU "stands by the actions taken by the [Board] with regard to its employment of an insurance agency/agent."
Mr. Taylor initiated this appeal on March 16, 2009, and subsequently provided this office with supporting documentation, including the Requests for Proposals from 2006-2008, in which a "committee" or "Insurance Committee" is mentioned, as well as a DVD recording of the Board meeting held on October 13, 2008, at which all three of the named employees were present, Mr. Iverson identified them, and then he offered a recommendation after outlining the process by which the group, referred to by him as a "committee," reached a consensus. Mr. Taylor again supplemented his appeal by letter dated March 24, 2009, addressing each of the arguments that Ms. Burt raised in detail. 1 Of particular significance, Mr. Taylor expressly denied having ever alleged "that the [Board] appointed a committee," and further clarified that he instead alleged that "the Committee exists and provided factual reasons" for that belief as well as the assertion that it "acted in an advisory capacity to the Board."
Citing KRS 61.805(2)(f), 98-OMD-96 (mistakenly cited as 98-OMD-95), OAG 91-54, and OAG 89-25, Mr. Taylor argued that no requirement exists in the Act that a committee "be created by formal action of the [Board] for it to be considered a public agency" nor does the Act require "that some function or decision making authority be delegated to" a committee for it to be considered a public agency. In his view, the Board does "control" the "Committee" because, "if for no other reason, the Board has the authority to require a change of purpose, assign a specific task, or demand the outright disbandment of the Committee at any time." According to Mr. Taylor, the activities that Ms. Burt described "sound[] like activities of a Committee" and "[s]emantics aside, it is clear that, in one fashion or another, members of the Committee were involved in the decision making process, which included at some point combining the tabulations. " Finally, Mr. Taylor contended that Ms. Burt's reliance on 04-OMD-148 was misplaced. In closing, he summarized the reasons that "we know beyond a reasonable doubt" that the "Committee" existed, and reiterated the nature of its role in the selection process, neither of which is determinative.
Upon receiving notification of Mr. Taylor's appeal from this office, Ms. Burt responded on behalf of BGMU, initially advising that BGMU has complied with KRS 61.810. By way of background, Ms. Burt explained:
BGMU let a Request for Proposals for Insurance Agency/Agent to Represent BGMU and provide services . . . in the [F]all of 2008. Once bids were received by BGMU, the BGMU General Manager, Mark Iverson, reviewed the bids and asked two other BGMU employees to independently review the bids. None of the three employees that reviewed the bids are members of the BGMU [Board], and none were asked to perform this review by the BGMU [Board]. Once all three employees had independently reviewed the bids, they met to combine their tabulations. The combined tabulations became the foundation for the General Manager's recommendation to the BGMU [Board] with regard to the insurance agent/ agency selection. The recommendation of the General Manager is not binding on the [Board] and has no legal effect on the Utility.
At the time the request for proposals was issued, Mr. Taylor was the incumbent insurance agent/ agency for BGMU, but became a disappointed bidder when the BGMU [Board] selected another entity as its successful bidder during its October 13, 2008 Board Meeting. The October 13, 2008 Board Meeting was open to the public, and there are no allegations of any violation of the [Open Meetings Act] or Model Procurement Code with respect to this meeting or the procurement process. Rather, Mr. Taylor alleges that the Open Meetings Act was violated when three BGMU employees met to combine their independent tabulations. This allegation is without merit.
In closing, Ms. Burt essentially reiterated her previous legal arguments. Based upon the following, this office finds the position of BGMU persuasive.
As the Attorney General has consistently recognized, our analysis must be guided by the legislative declaration of intent found at KRS 61.880, pursuant to which "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." In construing this provision, the Kentucky Supreme Court has expressly recognized that public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny,"
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997), since this declaration "is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency."
Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (1987).
Of particular significance on the facts presented, this office has analyzed the extent to which the Open Meetings Act "reaches down through layers of administrative organization to affect the day-to-day administrative work of public employees." OAG 94-25, p. 2. In so doing, the Attorney General found guidance in published opinions from other jurisdictions with similar laws, proceeding on the following premise:
Our open meetings law is intended to provide public access to meetings of decision-making bodies, and it is not intended to provide public access to the day-to-day administrative work of a public agency. This approach "avoids the crippling consequences of placing unjustifiable impediments on achieving day-to-day administrative efficiency." Tribune Publishing Company v. Curators of University of Missouri, 661 S.W.2d 575, 585 (Mo. Ct. App. 1983). 2
Id. at 3 (applying a "single practical definition" for terms enumerated in KRS 61.805(2)(g) and referring to as a "committee" any "group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it")(emphasis added).
Similarly, this office partially relied upon
Bennett v. Warden, Fla. App., 333 So.2d 97, 99 (1976), in which the Court held that the open meetings law in Florida did not apply to meetings between an executive officer and his advisors because "[a]ny other conclusion, carried to its logical extension, would . . . unduly hamper the efficient operation of modern government the administration of which is more and more being placed in the hands of professional administrators." In the Court's view, and ours, it "would be unrealistic, indeed intolerable, to require of such professionals that every meeting, every contact, and every discussion with everyone from whom they would seek counsel . . . be a public meeting within the disciplines of the Sunshine Law. "
In the instant appeal, the decision-making or governing body of BGMU is the Board of Directors, the meetings of which are unquestionably governed by the Open Meetings Act. The narrow question presented is whether three BGMU employees/staff members, namely the General Manager, the Human Resources Director, and the Purchasing Agent, each of whom independently reviewed the bids received in response to the specified RFP before meeting to combine their tabulations which, in turn, formed the basis for the General Manager's recommendation to the Board, constitute a "public agency" within the meaning of KRS 61.805(2), the meetings of which are governed by the Act. Inasmuch as "the function th[is] group[] serve[s] and the manner in which [it was] created [are] determin[a]tive, not the title by which [it is] known," the answer to this question is "no." 95-OMD-71, p. 4.
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[.]
Subsections (a)-(c) and (h) are facially inapplicable to the BGMU employees. KRS 61.805(2)(f) is also inapplicable insofar as the "governing body" of BGMU is the Board of Directors rather than the three staff members who reviewed the proposals. Both KRS 61.805(2)(d) and (e) are inapposite as the employees/staff members discharging their administrative functions were not created by or pursuant to statute, order, ordinance, resolution, or other legislative act. 3 Finally, the staff members do not fall within the parameters of KRS 61.805(2)(g). The record is devoid of evidence that the staff members were a committee "established, created and controlled by a public agency as defined in" any of the remaining subsections. 4 To the contrary, BGMU has emphatically asserted that the "BGMU Board of Directors did not establish, create, appoint or control a Committee to act on [its] behalf with respect to the insurance agency/agency procurement, and did not delegate any of [its] functions or decision making authority" nor were any of the three employees "asked to perform this review" by the Board. The staff members "had no formal authorization, no formal membership, no formal agenda or minutes, [] took no formal action, made no formal recommendations, and did not meet as the result of any action of any public agency. " 96-OMD-174, p. 2 (emphasis added).
This position is validated in a number of prior decisions by this office. For example, in 99-OMD-178 this office concluded that the Bell County Middle School Parent-Teacher Organization was not a public agency as defined in KRS 61.805(2), and therefore did not violate the Open Meetings Act by failing to provide written notice of a meeting. As in 96-OMD-174, this office held that despite the expansive language of KRS 61.805(2), and the clearly expressed legislative intent found at KRS 61.800, an entity that has "'no formal authorization, no formal membership, no formal agenda or minutes, [takes] no formal action, [makes] no formal recommendations, and [does] not meet as the result of any action of any public agency is not a public agency within the scope and meaning of the Act.'" 99-OMD-178, p. 4, citing 96-OMD-174, p. 3. Similarly, in 00-OMD-141, the Attorney General held that seven Kentucky Department of Education employees, four contractor representatives, and one employee of the Office of Education Accountability, whose discussions focused on implementation of the assessment program for elementary and secondary schools, did not fall within the parameters of KRS 61.805(2)(a) through (h). See 96-OMD-174 (holding that public officials, officers, and employees from various governmental entities which met to discuss budget appropriations did not fall within the definition of a public agency since none of those entities was represented by a quorum, and they did not exist pursuant to statute, ordinance, order, resolution, or any act of any public agency) ; 95-OMD-71 (holding that President's Cabinet and Leadership Team at Prestonsburg Community College were not public agencies within the contemplation of the Open Meetings Act as they were "not grounded in statute, executive order, regulation or resolution of any kind," and "could just as easily be characterized as staff meetings or administrative personnel meetings."); see also 04-OMD-082; 94-OMD-148. 5
As the Missouri Court of Appeals observed in Tribune Publishing Co., "[n]either the letter nor the spirit of the 'Sunshine Law' presaged an era wherein purely administrative meetings and administrative functions of public bodies without power or authority to govern were subject to public participation." Id. at 584. Because the BGMU staff members are not a public agency for purposes of the Open Meetings Act, they were not required to conduct their meeting(s) in accordance with the provisions thereof; accordingly, they cannot be said to have violated KRS 61.820, 61.823 or 61.835 or any other provision of the Act.
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. Taylor again supplemented his appeal with a "Memo" or "note speaking to the remoteness concept," received here on the afternoon of March 26, 2009, attached to which is a copy of FL AGO 85-76, an opinion by the Florida Office of the Attorney General. It suffices to say that nothing in either document alters our conclusion.
2 In Tribune Publishing Co., above at 585, the Court observed:
Securing government accountability at the decisional level is one thing. Adversely affecting administrative efficiency at the non-decisional level is quite another thing. It is inconceivable that the salutary goal of letting the "sunshine" in on meetings of "public governmental bodies" envisioned elimination of all intermediate layers of ozone to the extent of crippling or impeding the day-to-day efficiency of purely administrative functions.
3 It is also noteworthy that KRS 61.805(4) specifically provides that: "Member means a member of the governing body [the Board] of the public agency and does not include employees or licensees of the agency [BGMU]." (Emphasis added.)
4 In contrast, see the definition of "public agency" codified at KRS 61.870(1) of the Open Records Act, subsection (a) of which provides that public agency means "Every state or local government officer."
5 Compare 99-OMD-77 (budget committee appointed by Franklin County Fiscal Court is a public agency pursuant to KRS 61.805(2)(g) as the advisory committee was established, created, and controlled by a public agency) ; 98-OMD-96 (City of Madisonville Sign Committee appointed by zoning administrator to review and report on existing sign ordinance is a public agency as defined in KRS 61.805(2)(f) insofar as its members were appointed by a local official); 97-OMD-139 (Housing Appeals Committee at Eastern Kentucky University is a public agency pursuant to KRS 61.805(2)(g) and its meetings are open to the public unless one or more exceptions found at KRS 61.810(1) applies).