10-OMD-043 | KOGC

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 Butler County Fiscal Court violated the Open Meetings Act when four of its six members met with the Butler County Sheriff individually to discuss the Sheriff's revised budget proposal over a period of time extending from December 16, 2009, to January 4, 2010. We find that the record on appeal supports the claimed violation.

On January 11, 2010, Robert D. Cron submitted a written complaint to Butler County Judge/Executive David Fields in which he alleged that four of the six fiscal court members improperly conducted individual meetings with Sheriff Joe Gaddie to discuss the Sheriff's revised budget proposal in advance of the January 4 special meeting at which a budget was approved. In support, he stated that Magistrate Roger McKinney met with Sheriff Gaddie sometime after the Sheriff submitted his revised budget proposal, 1 that Magistrate Allan Smith met with Sheriff Gaddie on December 29, and that Magistrate Darrell Deweese met with Sheriff Gaddie on January 4. He alleges, and the Fiscal Court does not dispute, that Judge Fields attended the December 16 meeting with Magistrate McKinney and Sheriff Gaddie. He further alleges, and the Fiscal Court does not dispute, that Magistrate McKinney stated that "the Magistrates had decided to meet with the Sheriff 1 on 1." The parties agree that the subject of these meetings was the Sheriff's budget.

It was Mr. Cron's position that the Fiscal Court deliberately violated the Open Meetings Act when four of its six members met with the Sheriff, "1 on 1," to discuss his budget without proper notice to the public and in a nonpublic forum that precluded public attendance. As evidence of the Fiscal Court's subjective intent, Mr. Cron noted that in 09-OMD-014 2 the Attorney General admonished the Butler County Fiscal Court that "Where there are 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 court, 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)." 09-OMD-014, p. 5. Because the members of the Butler County Fiscal Court denied having conducted a series of less than quorum meetings, we acknowledged our inability to "conclusively resolve this issue," but concluded that "if such conduct has occurred, or is occurring, it must cease." Id.

As a means of remedying the alleged violations, Mr. Cron proposed that the Fiscal Court invite a representative of the Attorney General's Office to conduct onsite open meetings and open records training for the members of the Fiscal Court and the public. In addition, he proposed that the Fiscal Court "recognize and admit [that] they did violate the Open Meetings Act and issue a statement to that effect to all of the local media's [sic]."

In a response dated January 29, 2010, 3 the Butler County Fiscal Court indicated that it would be "amenable to attending a meeting with a representative from the Attorney General's Office to have discussion and clarification of Open Records and Open Meetings issues," but denied that it had committed a violation of the Open Meetings Act by conducting a secret meeting of a quorum of its members or by meeting in number less than a quorum to avoid the requirements of the Act. On behalf of the Fiscal Court, Butler County Attorney Richard Deye acknowledged that "three of the Magistrates met with the Sheriff and had discussions concerning the Sheriff's budget, " 4 but disputed Mr. Cron's allegation that these meetings constituted a violation of the Act. He observed:

It is important to point out that to be improper, KRS 61.810(2) requires that the series of less than quorum meetings must be held for the express purpose of avoiding the requirements of the Open Meetings Act. In other words there must be an intent on the part of those participating to avoid the requirements of the Open Meetings Act. It is also important to recognize that the statute allows for discussion between individual members of a public agency where the purpose of the discussion is to educate the members on specific issues.

It was his client's position that:

The underlying purpose of the Open Meetings Law is that Government not do its business in secret. On some level the Open Meetings Law is to prohibit Government decision makers from making decisions in "back rooms" outside the eye of the public. The purpose is not to prevent the decision makers from having discussion of public issues.

The Fiscal Court members likened their one on one discussions with Sheriff Gaddie to discussions conducted "with a constituent to educate themselves with regard to an issue," concluding that the Act only prohibits the Fiscal Court members from discussing that issue with each other.

In supplemental correspondence directed to this office, the Butler Fiscal Court emphasized that because no action was taken at the series of meetings attended by four of its six members, no violation occurred. In support, the Fiscal Court attached affidavits "from the three Magistrates who met with the Sheriff in which the Magistrates indicate that the purpose of their meeting with the Sheriff was for the educational purpose to learn about the Sheriff's budget. " Each of the affidavits conclude with the following statement:

The affiant states that he is familiar with the provisions of the Open Meetings requirements and at no time did he intend to take any action in violation thereof. This affiant states that his discussions with the Sheriff were to become educated with regard to the budget.

The Fiscal Court did not include an affidavit from the County Judge notwithstanding the fact that he attended the December 16 meeting with Magistrate McKinney. 5 In sum, "[t]he Magistrates . . . deny having any communication with the other Magistrates concerning the content of their meeting with the Sheriff and furthermore they deny taking any type of collective action in any context other than a scheduled Fiscal Court meeting."

Our review of the record on appeal confirms that from December 16, 2009, to January 4, 2010, the Butler County Fiscal Court violated KRS 61.810(2) by participating 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 Fiscal Court 6 for the purpose of avoiding the requirement of KRS 61.810(1). That statute requires that meetings be conducted publicly when "any public business is discussed or . . . [when] any action is taken . . . ." KRS 61.810(1) (emphasis added). Further, we find that the purpose of the series of less than quorum meetings was not to educate the members on the issue of the Sheriff's budget.

In a recent open meetings decision, the Attorney General observed:

The general mandate of the Act is codified at KRS 61.810(1) and provides:

Recognizing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, in 1992 the General Assembly enacted KRS 61.810(2) which states:

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 v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998). 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. Continuing, in Yeoman the Court observed:

Id., quoted in 09-OMD-218, p. 4, 5 (emphasis added). See also 00-OMD-63, p. 5 (holding that "KRS 61.810(2) prohibits all less than quorum meetings where the members attending one or more of the meetings collectively constitute at least a quorum, and not just those which culminate in a collective decision").

We underscore certain language in this quotation to emphasize that "KRS 61.810(1) requires that any meeting at which public business is discussed or action is taken must be open to the public," and that we "attach significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'" The fact that the Fiscal Court took no action at these meetings does not alter our conclusion that their conduct constituted a violation of KRS 61.810(2) . Nor does the fact that they did not engage in further communications on the topic with each other. Because they discussed the various alternatives to the issue of the Sheriff's budget in a series of nonpublic meetings, and this was a matter about which the Fiscal Court had the option to take action, their conduct was improper. Proof of their improper purpose can be inferred from the statement attributed to Magistrate McKinney, and not disputed by the Butler Fiscal Court, that they decided to meet with the Sheriff "one on one instead of meeting as a group." The members of the Butler County Fiscal Court may sincerely believe that they are "familiar with provisions of the Open Meetings Act, " but their belief that they can avoid the requirements of KRS 61.810(1) by conducting a series of less than quorum meetings to discuss public business suggests otherwise. 7

We reject the Fiscal Court's comparison of these one on one discussions of the Sheriff's budget with the Sheriff to a one on one discussion with a constituent. First and foremost, Sheriff Gaddie is not a constituent but is instead an elected officer whose office's financial existence largely depends on Fiscal Court approval of his budget. 8 Every resident of Butler County has a compelling interest in insuring that his office is adequately funded to insure effective law enforcement countywide. Contrary to the Fiscal Court's view, the purpose of the Open Meetings Act is not only to prohibit decision makers from making decisions that affect the entire community "in 'back rooms' outside the eye of the public," but also "to prevent the decision makers from having discussions of public issues" critical to the broad public interest outside the eye of the public. As the Kentucky Supreme Court has observed, "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 (Ky. 1987). The public's right to be informed includes not only the right to know what decisions are made but how they are made.

Finally, we reject the Fiscal Court's assertion that these meetings were held for the purpose of educating the individual members. Although it is unclear why this language was included in the 1992 amendment to the Open Meetings Act that resulted in the enactment of KRS 61.810(2), it is contrary to the letter of the Open Meetings Act to suggest that the language is available as a defense to any claimed violation of KRS 61.810(2). If it were otherwise, this narrow exception would swallow the express rule. "The formation of public policy, " the General Assembly declares in the statement of legislative policy codified at KRS 61.800, "is public business and shall not be conducted in secret. " (Emphasis added.) While the Butler County Fiscal Court may enjoy the right to a nonpublic education on general budget principles affecting all county governments "outside the eye of the public," it does not enjoy the right to formulate public policy directly affecting Butler County "outside the eye of the public" in one on one meetings or otherwise. Accord, 05-OMD-136 (recognizing that a quorum of the members of a public agency may attend a professional event, such as a conference or convention conducted by a separate entity, for educational purposes, but the agency members "attending such a convention or conference are not authorized to take action affecting [the agency they represent] nor are they permitted to discuss matters directly affecting their [agency]);" see also, OAG 78-634; 01-OMD-30; 05-OMD-164; 08-OMD-234. Simply stated, the one on one discussions between the Fiscal Court members and the Sheriff that occurred between December 16, 2009, and January 4, 2010, could have been, and more importantly, should have been conducted in a public meeting. Given the fact that the Fiscal Court acknowledged that these meetings occurred, that the members attending collectively constituted a quorum, and that they chose to meet one on one, instead of in a group, to avoid the requirement of a public meeting, we find that the Butler County Fiscal Court's actions violated 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.

Robert D. CronDavid FieldsRichard J. Deye

Footnotes

Footnotes

1 The record reflects that this meeting took place on December 16, 2009.