Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Ohio County Board of Education ("the Board") violated provisions of the Open Meetings Act when, on or about May 12, 2009, it engaged in a series of less-than-quorum meetings where the Board 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 Board members' actions contravened the Act.
In a complaint dated May 20, 2009, Ohio County Times-News editor Don Wilkins alleged that some time prior to May 18, 2009, Board chairman Barry W. Geary secretly conducted a series of less-than-quorum meetings with other members of the Board "in order to obtain the support of a majority of the Board" for extending a retirement buyout offer to the superintendent of schools, Soretta Ralph. As a means of remedying the alleged violation, Mr. Wilkins proposed that the Board provide him with "any and all records reviewed by the Board members during the series of closed discussions" as well as "any minutes or recordings of the closed sessions [or] a detailed account of what took place"; "publicly apologize for, and admit to, the violations of the Open Meetings Act" ; and "commit in writing to abide by the law in the future." Mr. Geary's response on May 26, 2009, was a letter stating simply: "I refer you to the May 22 Special called Board meeting for any comments where I apologized." This office received Mr. Wilkins' appeal on June 1, 2009.
In his appeal, Mr. Wilkins states that the Board of Education consists of five members, and argues as follows:
The Board violated the Open Meetings Act by conducting a series of less-than-quorum meetings in order to obtain the support of a majority of the Board to extend the offer to Ms. Ralph. Under KRS 61.810(2), this constituted a meeting that should have been open to the public, and the vote of the Board members to approve the offer should have been open. There is no provision of KRS 61.810 authorizing the series of secret discussions among Board members in order to approve the offer that Mr. Geary extended to Ms. Ralph.
On June 3, 2009, Barry W. Geary submitted a response to this appeal, in which he admits having spoken to two other Board members, Brad Beatty and Dwight Raymond, concerning a proposal to buy out the superintendent's retirement before he presented the idea to Ms. Ralph.
In correspondence directed to this office following commencement of the appeal, Board attorney A. V. Conway, II, states that he had no knowledge of Mr. Geary's discussions with the other Board members until after the events occurred. Superintendent Soretta Ralph has also submitted correspondence, in which she alleges that on this and other occasions Mr. Geary has informally contacted two other members of the Board to discuss how they would vote on various matters. Her correspondence includes a copy of a "press statement" from Board member Bradley A. Beatty, in which he states that Mr. Geary discussed the matter with him by telephone, but that he was unaware of discussions between Mr. Geary and any other Board member on the subject.
The Open Meetings Act prohibits "meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 474 (Ky. 1998). Although we cannot determine their subjective intent, the participating Board members otherwise violated KRS 61.810(2) by engaging in a series of less-than-quorum meetings where 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, supra, 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, supra, at 474.
No one appears to dispute that a quorum was present in the two other members' consecutive discussions with Mr. Geary. A "gathering" can be by telephone. 05-OMD-026; 02-OMD-153. Accordingly, 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(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, conversations relating to the potential expenditure of public funds to buy out the school superintendent's retirement fall within the scope of this definition of the term "public business. " This was a discussion of matters directly or indirectly related to an issue upon which the Board has the option to act. The exclusion of some Board members, the press, and the public from this discussion established the second element of a violation of KRS 61.810(2).
KRS 61.810(2) contains a third element. That element relates to intent and 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 the discussions 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 Board 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). 3
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.
3 Although Mr. Wilkins has asked this office to order the Board to produce certain documents, such a remedy is not within the granted powers of the Attorney General under KRS 61.846(2).