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 records appeal, and the Attorney General being sufficiently advised, we find that the Milton City Commission violated the Open Meetings Act when it conducted an unpublicized "impromptu meeting" on or about April 30, 2010, to meet with Mark Bates, an applicant for the position of Water and Sewer Department Supervisor, and again on June 25, 2010, when the Mayor conducted an unpublicized meeting with a city clerk/ treasurer screening committee, created by the mayor and comprised of two commissioners, to discuss their charge and provide them with copies of the applications. Additionally, we find that the Commission violated the Act by failing to respond to the open meetings complaint alleging these violations.
In an August 11, 2010, letter addressed to Mayor Denny Jackson, Shannon R. Hoskins complained that because the city failed to comply with the notice requirements for special meetings and to record minutes on both occasions, these meetings violated the Open Meetings Act. As a means of remedying the alleged violation, Ms. Hoskins proposed that the city conduct all future public business in a manner consistent with the Open Meetings Act by "advertis[ing] appropriately, open[ing] appropriately, conduct[ing] appropriately, and record[ing] appropriately" all of its meetings. Ms. Hoskins received no response to her request, prompting her to initiate this appeal on August 18, 2010.
On August 26, 2010, the city commission responded to this office's notification of receipt of Ms. Hoskins' open meetings appeal. The city explained:
In March, 2010, the individual who had been supervisor in the Milton Water & Sewer Department retired after many years of service. There were several applicants for the job, including Ms. Hoskins' husband. Another was an in-house employee who failed to meet the qualifications, which included holding certain state required licenses. Mayor Denny Jackson had reviewed all the applications and had discussed them at regularly scheduled meetings with the Commission. None were particularly suitable. Prior to any selection being made, Mark Bates submitted his resume for the job and appeared to be highly qualified. Mayor Denny Jackson called an impromptu meeting of the Commission members mentioned in the complaint to speak with Mr. Bates. The meeting was not properly noticed as required by Open Meetings requirements. The sole purpose of the meeting was to have Commission members meet Mr. Bates. No votes were taken at this meeting and no decisions were made with regard to hiring Mr. Bates or anyone else. Those discussions were conducted at the next regular meeting of the Milton City Commission at which time Mr. Bates was hired.
With regard to the June 25, 2010 complaint the following information is provided. In response to a posting for the position of City Clerk/ Treasurer the city received over 120 applications. The Mayor pared the list down to 12 persons who were very qualified on paper. At that point Mayor Jackson asked Commissioners Jameson and Harmon if they would serve as a two person committee to interview each of those applicants and make recommendations to the Commission as a whole on who might be the best candidate. They agreed to do so. The sole purpose of the meeting on June 25th was to give them the 12 applications and ask that they talk to the applicants and come back with their recommendations. They did exactly that and at a subsequent regularly scheduled Commission meeting the final four candidates in the running were discussed and a selection was made. All discussions about qualifications and suitability for the position, as well as votes on who should be hired, were conducted in accordance with the law on Open Meetings.
The fact that no votes were taken at either of these meetings does not ameliorate the violations.
In 07-OMD-100 the Attorney General determined that a public agency "violated KRS 61.810(1) in conducting a discussion of public business in a nonpublic forum and KRS 61.846(1) in failing to respond to [the open meetings] complaint [alleging this violation]." There, a quorum of the members of a board of education conducted a discussion of the ramifications of the Department of Education's rejection of the board's request for a waiver of DOE's regulations governing school construction while returning from Frankfort in a van. The board admitted that the discussion occurred on the return trip, but argued that "none of its members made any formal or informal commitment, promise, or decision concerning any public business. " A copy of 07-OMD-100 is attached hereto and incorporated by reference.
At page 3 of 07-OMD-100, the Attorney General quoted from a Kentucky Supreme Court opinion interpreting KRS 61.810(1). That statute contains the fundamental mandate of the Open Meetings Act and provides:
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 . . . [.]
In
Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998) the Court held that the Open Meetings Act "prohibits a quorum from discussing public business in private or meeting in numbers less than quorum for the express purpose of avoiding the open meetings requirements of the Act." We concluded that because a quorum of the members of the board of education discussed "the various alternatives to a given issue about which the [board] ha[d] the option to take action," its discussion constituted a violation of KRS 61.810(1), notwithstanding the fact that no action was taken. This analysis applies with equal force to the issue before us in this appeal.
The Milton City Commission acknowledges that it conducted two meetings of a quorum of commission members and/or a quorum of committee 1 members without complying with the notice requirements found at KRS 61.823 or the requirement that it record minutes found at KRS 61.835. The purpose of the first of these meetings was to permit the commission members to meet a candidate for the position of Water and Sewer Department supervisor. The purpose of the second meeting was to instruct a committee created by the mayor to screen applicants for city clerk/ treasurer on their duties. The commission intimates that neither meeting involved a discussion of public business and that no violation occurred because no action was taken.
07-OMD-100 directly contradicts the commission's apparent belief in this regard. Clearly, a meeting with an applicant for a position in city government to assess his qualifications involves a discussion of public business insofar as discussion at the meeting may lead to his appointment. 2 By the same token, a meeting at which the mayor instructs a committee created to screen applicants for the position of city clerk/ treasurer on its duties involves a discussion of public business. Both involve a discussion of issues upon which the commission has the "option to take action." Id. As in 07-OMD-100, "our conclusion is not altered by the fact" that no final action was taken at either meeting. The Open Meetings Act prohibits agencies from taking action or discussing public business, or both. The language of KRS 61.810(1) makes this abundantly clear through the use of the disjunctive particle "or" rather than the conjunction "and." The failure to adhere to the notice requirements prior to the meetings and to record minutes during the meetings constituted a violation of KRS 61.823 and 61.835 respectively. We will not belabor the issue.
Nor will be belabor the issue of the commission's violation of KRS 61.846(1). That statute provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Here, as in 07-OMD-100, we find that the agency against which Ms. Hoskins filed her complaint, the Milton City Commission, violated the Open Meetings Act by failing to respond to that complaint.
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.
Shannon R. HoskinsDenny JacksonGenon Hensley
Footnotes
Footnotes
1 The screening committee appointed by the mayor is a separate public agency pursuant to KRS 61.805(2)(g) and its meetings are therefore subject to the requirements of the Act.
2 The commission exercises executive, legislative, and administrative authority, pursuant to KRS 83A.130, in a commission form of municipal government.