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 Triple S Planning Commission Comprehensive Plan Committee ("the Committee") violated provisions of the Open Meetings Act when, between March 17 and April 21, 2009, it held non-public meetings without public notice, at which public business was discussed but no minutes were recorded. For the reasons that follow, we find that the Committee's actions contravened the Act.
The Triple S Planning Commission ("the Commission") is a public agency jointly created by Shelby County and the Cities of Shelbyville and Simpsonville. It is alleged in this appeal, and not disputed as such, that at its March 17, 2009, meeting the Commission created a committee or ad hoc committee to develop a draft of a new comprehensive plan to be presented subsequently to the full Commission for consideration. It is also undisputed that this committee held non-public meetings to discuss the comprehensive plan; provided no public notification of such meetings; kept no minutes of the meetings; and presented a draft of goals and objectives for the comprehensive plan at the Commission's April 21, 2009, meeting.
In a complaint dated September 17, 2009, Jim Ellis, the president of Maintain Our Rural Environment, Inc. ("MORE"), alleged that
The Triple S Planning Commission (Commission) has formed a committee for the apparent purpose of reviewing proposed drafts for rewriting the present Comprehensive Plan and making changes in those drafts that then have been or will be taken to the full Commission for its consideration. It is the understanding of MORE that members of this committee are Mr. Tucker, Mr. Rudolph, and Mr. Biagi, members of the Commission, and Mr. Lipke, the Executive Director of the Commission. It is also the understanding of MORE that this committee functions without a presiding officer.
This committee has met in the past without the benefit of notice to the public as to the times and places that the committee has met.
In summary, Mr. Ellis alleged that the Committee was a public agency which was developing a comprehensive plan in non-public meetings without public notice. As a means of remedying the alleged violation, Mr. Ellis proposed that the Committee give public notice of its future meetings. He further requested that MORE receive direct notice of special meetings of the Committee pursuant to KRS 61.823(4).
The Commission responded on September 22, 2009, with a letter from Commission Chairman Gil Tucker. In defense of the Committee's actions, Mr. Tucker stated in pertinent part:
The Commissioners and staff who met reviewed comments received by the public to better understand their concerns and reviewing those comments is not the formation of public policy.
? The Commissioners present did not make a decision or vote on the Comprehensive Plan during these sessions otherwise if they did they would have been in violation of your claims.
? The public agency in question is the Commission and at these meetings a quorum would require four (4) commissioners to be present. The number of commissioners present at any one time was three (3); Chairman Gil Tucker, Commissioner Ed Rudolph and Commissioner Quintin Biagi.
This office received Mr. Ellis' appeal on September 29, 2009.
In his appeal, Mr. Ellis reiterates his claim that the Committee is a public agency under KRS 61.805(2)(g) created by the Commission and "has met in non-public meetings to develop the Comprehensive Plan" without giving notice to the public pursuant to KRS 61.820 and 61.823. He further alleges that at the April 21, 2009, meeting of the Commission
the Committee presented an action taken with its deliverance of the Committee's "formulated" new draft of the Goals and Objectives [for the comprehensive plan] . It was apparently predetermined that this draft would be and was the Commission's document to be accepted as presented. Without change to the draft, without debate upon the draft, and without a vote upon the draft, the Commission immediately set the mechanism into play to take the draft to a public hearing at a specially called meeting of the Commission held on May 26, 2009?
?
Additionally, as a public agency that discussed public business and took actions, the Committee is required under KRS 61.835 to take minutes of its meetings. Neither the Committee nor the Commission has indicated that minutes of the meetings of the Committee were taken.
On October 1, 2009, Mr. Tucker submitted a response to this appeal, in which he states the following:
The Commission has not provided a notice to future meetings because the Commission denies the claim by MORE as noted in the original response[.] Furthermore, the Commission has never denied or refused public access to the meetings referred to by MORE. During the March 17, 2009 Planning Commission meeting, the Commission minutes note a meeting time and date would be scheduled ? and in attendance at that meeting were members of MORE. MORE also doesn't provide evidence that notice procedures weren't followed in accordance with KRS 61.820.
Mr. Tucker then explains that the Commission has been developing its comprehensive plan in keeping with KRS 100.183 through 100.197, and then continues:
Preparing said goals and objectives does not equal taking action and therefore, no minutes would be required. If MORE's claim is determined to be accurate then it would appear Shelby County Fiscal Court should have taken minutes of their workshops they held when they worked on and agreed to changes to the goals and objectives forwarded to them by the Commission for consideration, amendment and adoption. During said workshops, Shelby County Fiscal Court had enough Magistrates present for a quorum and said Magistrates took action by agreeing to changes that would be voted on at a later Fiscal Court meeting. 1
[T]he Commission has not violated the Kentucky Open Meetings Statutes when they are authorized and obligated under KRS 100.183 through 100.197 to prepare a Comprehensive Plan and said Statutes provide for the processes and requirements to do so.
The substance of this last argument appears to be that because planning commissions are required to prepare statements of goals and objectives pursuant to KRS 100.193(1), they need not comply with the Open Meetings Act in doing so. Since Mr. Tucker cites no provision of KRS Chapter 100 that expressly allows any such business to be conducted by public agencies in non-public meetings, we find no merit in that argument.
As to the statement that "the Commission has never denied or refused public access to the meetings," it is unclear whether Mr. Tucker is referring to the meetings of the Planning Commission or the meetings of the Committee. If the former, then these are not the meetings at issue. If the latter, then refusal of public access to meetings is presumably a moot issue if the public was never notified of the times and places of those meetings.
With regard to Mr. Tucker's statement that Mr. Ellis "doesn't provide evidence that notice procedures weren't followed in accordance with KRS 61.820," it is not the appellant's burden to prove a negative. The record contains no evidence that such notice was given. We therefore conclude, based upon the failure to refute Mr. Ellis' allegation, that notice was not given of meetings of the Committee pursuant to KRS 61.820 or 61.823.
The fundamental question is whether the Committee, as distinct from the Commission, is a public agency. For purposes of the Open Meetings Act, "public agency" is defined by 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[.]
(Emphasis added.)
The minutes of March 17, 2009, clearly reflect that the Commission, which is undisputedly a public agency under the Open Meetings Act, spoke of a four-person "committee" to draft goals and objectives for a new comprehensive plan and present it to the Commission for consideration:
Comprehensive Plan Goals and Objectives Discussion
Libke: ? These workshops were to work on the goals and objectives and the information staff produced was for discussion to help facilitate. One thing you might do to help staff is to form a committee to set [sic] down and look at the information to make some recommendations to the rest of the commission. It looks like we could hold a public hearing in May for a recommendation to fiscal court and the cities.
Tucker: The committee will consist of Mr. Rudolph, Mr. Biagi, Mr. Libke and myself (Tucker).
Libke: I will contact the committee members to schedule a time and date to work on and review the goals and objectives.
(Minutes of Triple S Planning Commission meeting, March 17, 2009, p. 13.) The response to this appeal contains no direct denial that such a committee was in fact created.
Whether this group is considered a "committee," an "ad hoc committee," or an "advisory committee" makes no difference, since all of these are covered by the definition in KRS 61.805(2)(g). The Commission evidently established and created the Committee, and controlled it inasmuch as it assigned the Committee the task of drafting the goals and objectives and reporting back. Any committee established, created, and controlled by a public agency "is, itself, a public agency [and] is statutorily obligated to comply with" the notice requirements of KRS 61.820 and 61.823, the public-meeting requirement of KRS 61.810(1), and the minutes requirement of KRS 61.835. 09-OMD-132, p. 4.
Mr. Tucker's main argument is that the Committee did not "take action" when it met, but only "prepared the goals and objectives." We need not decide whether the Committee "took action," however, because it admittedly discussed public business at its meetings. 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[.]
Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of an agency at which either public business is discussed or action is taken. KRS 61.820 requires for a schedule of regular meetings of a public agency to be made available to the public, and for such meetings to be "held at specified times and places which are convenient to the public." Furthermore, KRS 61.823(3) requires written notice of any special meetings.
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." Thus any gathering of a quorum of the Committee was a meeting. It is undisputed that at least three out of the four members of the Committee were present when the goals and objectives were formulated; therefore a quorum was present.
In Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 474 (Ky. 1998), 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." (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." Id. Conversations relating to the substance of the goals and objectives must have inevitably taken place while the Committee was preparing its draft, and these clearly 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 Committee had the option to act, since it was charged with preparing the goals and objectives. The failure to give public notice of the meetings where such discussions were held, so that members of the public could attend, violated KRS 61.820 and 61.823. 2 To the extent those meetings were not open to the public, the Committee also violated KRS 61.810(1), and if no minutes were recorded it also failed to comply with KRS 61.835.
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 We make no determination as to the alleged actions of the Shelby County Fiscal Court because they are not the subject of this appeal.
2 Mr. Ellis' claim that MORE is a "media organization" entitled to receive notice of special meetings upon request pursuant to KRS 61.823(4) is not part of the present controversy before us, since there is no specific allegation that the Committee has met since receiving Mr. Ellis' letter dated September 17, 2007.