Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, we find that because the record on appeal contains conflicting evidence of the occurrence of a series of less than quorum meetings of the members of the Knox County Board of Education, we cannot resolve the question on appeal against or in favor of the Board.
On May 27, 2010, Times-Tribune reporter Becky Manley submitted a written complaint to Sam Watts, Chairman of the Knox County Board of Education in which she stated that "during the May 26, 2010, informational meeting, Superintendent Walter T. Hulett told those attending that before the board's vote [on consolidating West Knox Elementary School and Lynn Camp Middle High School] on Tuesday, May 25, he spoke to the district's board members individually to ask them their thoughts about changes the district could make to remedy its history of academic underachievement." (Emphasis added.) Continuing, she alleged:
The calls Mr. Hulett made to board members seem to be a series of less than quorum meetings that likely included discussion about district business as well as polling to determine board members' opinions about consolidation It seems apparent that discussion about the consolidation took place outside a public meeting since the board spent about four minutes on the agenda item concerning the consolidation and there was no discussion about the change before the board unanimously approved the change.
As a means of remedying the alleged violation, Ms. Manley proposed that the board and Mr. Hulett issue a written acknowledgement of the open meetings violation and pledge to commit no future violation of the Open Meetings Law.
In a response dated June 4, 2010, Mr. Hulett denied the allegations leveled against the board and him, cataloguing the number of occasions on which consolidation had been publicly discussed prior to the board's May 25 vote, including a December 15, 2009, regular board meeting, a January 11, 2010, special meeting, and a January 26, 2010, board meeting attended by "over 500 concerned citizens" at which "over one hour of discussion was held." Mr. Hulett maintained that it was to these meetings, as well as his appearance before the Kentucky State Board of Education on April 13, 2010, that he referred in his comments at the May 26 meeting. Acknowledging that he provides information to board members in advance of meetings for purposes of preparation, he denied any violation of the law, asserting that "there is nothing improper about board members asking and receiving information about school matters or agenda items." Shortly thereafter, the Times-Tribune initiated this appeal. 1
In supplemental correspondence directed to this office, board attorney Timothy Crawford described the events of the May 25, 2010, board meeting, noting that the meeting was properly noticed and conducted in accordance with the Open Meetings Act. Mr. Crawford denied that a series of less than quorum meetings was conducted between Mr. Hulett and the board members. He again denied that Mr. Hulett conducted a poll of board members before the May 25 meeting.
Pursuant to KRS 61.846(2), and to facilitate our review of the issue on appeal, on June 17, 2010, the Attorney General requested that the board furnish us with a copy of any audio or video recording of the May 26, 2010, meeting. The board responded that because the May 26 meeting was an informational session attended by school staff, parents, and students, rather than a special school board meeting, there was no audio or video recording of which the board was aware. 2 The Times-Tribune also indicated that it maintained no audio or video recording of the May 26 meeting. Accordingly, we cannot verify that Mr. Hulett made the statement attributed to him by the Times-Tribune.
KRS 61.810(2) expressly prohibits "[a]ny series of less than quorum meetings, where the members attending one 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 [KRS 61.810(1)]." In an open meetings decision issued shortly after the Act was amended to restrict this conduct, the Attorney General recognized that 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. " 94-OMD-106, p. 3. In 1998, the Kentucky Supreme Court declared that the Act:
prohibits a quorum from discussing public business in private or meeting in number less than quorum for the express purpose of avoiding the open meeting requirement of the Act. KRS § 61.810(2). . . .
Yeoman v. Commonwealth of Kentucky Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998). This office has long struggled with the issue of determining the subjective intent of the participants in a series of less than quorum meetings, generally recognizing our inability to do so but finding that a series of less than quorum meetings, where the members attending one or more of the meetings collectively constituted a quorum, otherwise fell within the zone of prohibited conduct. In a case now on appeal to the Butler Circuit Court, 3 this office rejected the public agency's claim that a series of less than quorum meetings were held for the purpose of educating the members on specific issues. At page 8 of 10-OMD-043, we concluded that agency members "do not enjoy the right to formulate public policy directly affecting [the agency] 'outside the eye of the public' in one on one meetings or otherwise."
In 00-OMD-63, an appeal involving similar but not identical facts, the record contained an unrefuted allegation that the county judge/executive announced at a press conference that he had conducted separate meetings with each of the members of the fiscal court to discuss newly received information regarding a jail site. A copy of 00-OMD-63 is enclosed for purposes of comparison. Against the fiscal court's defense that the Open Meetings Act recognizes the right of elected officials to discuss public business outside of a public forum so long as no collective decision is reached, the Attorney General held that the fiscal court violated two of the three elements of KRS 61.810(2) when its members met individually or in small groups to discuss public business and the members attending one or more meetings collectively constituted a quorum. There, the record contained proof of a series of less than quorum meetings that included a press release indicating that the county judge had "spoken to each of the Commissioners individually concerning this issue and [they collectively agreed] that this [was] the appropriate action to take . . . ." 00-OMD-63, p. 4. In the appeal before us, the superintendent and board members deny that a series of less than quorum meetings occurred, and there is no independent evidence to support the Times-Tribune's claim that the superintendent publicly announced that he met with the board members in a series of less than quorum meetings. If proof existed that he made the statement, it is by no means clear that the statement constituted an admission that he conducted a series of less than quorum meetings. Mr. Hulett's statement might also be interpreted as an expression of his belief that he understood the members' opinions based on the meetings at which the topic was discussed.
The record on appeal contains two widely disparate factual narratives, one of which is largely based on supposition and neither of which is supported by evidence. This office is not equipped to resolve this factual disparity. 08-OMD-234. We therefore cannot conclusively determine that the Knox County Board of Education violated the Open Meetings Act. Nevertheless, the Board should be guided by the referenced authorities in the conduct of the public's business.
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.
Becky ManleySam WattsWalter T. HulettTimothy Crawford
Footnotes
Footnotes
1 In her letter of appeal, Ms. Manley also questioned the timeliness of the board's response to her complaint. The board responded by explaining that although the complaint was dated May 27, Mr. Hulett did not receive it until June 2 owing to holidays and out-of-town commitments. Because the delay in response time was a matter of one to two days, we will not belabor this issue other than to remind the board that any delay in responding to an open meetings complaint beyond three business days of receipt by the agency constitutes a violation of KRS 61.846(1).
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2 The record on appeal is devoid of proof that the board regularly tapes informational sessions like the one at issue in this appeal, and we are aware of no legal requirement that it do so.
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3 Butler County Fiscal Court v. Robert Cron, 10-CI-0065 (Butler Circuit Court).
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