Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Cumberland City Council violated the Kentucky Open Meetings Act when three members of the City Council (Norma Bowyers, Yvonne Gilliam, and Eugene Stagnolia), the former Chairman of the Planning and Zoning Commission for the City of Cumberland, Don Disney, and Mayor Loretta Cornett, all of whom are named as defendants in Emma Gist v. The City of Cumberland, et al., Civil Action No. 10-CV-144 GFVT, met with Brandon Jones, the attorney representing those individuals and the City, for the purpose of discussing that pending litigation. The record on appeal does not support a finding that a single meeting of a quorum (at least four members) of the City Council was conducted, or that a series of less than quorum meetings was conducted where the members attending one or more of the meetings collectively constituted at least a quorum; accordingly, this office is unable to conclude that the City Council violated the Open Meetings Act. Consistent with KRS 61.810(1), application of the requirements of the Act "is conditioned upon proof that a meeting occurred, that the meeting was attended by a quorum of the members of the public agency, and that public business was discussed or action was taken." 00-OMD-200, p. 6 (emphasis added).
By letter directed to Mayor Cornett on October 13, 2010, Councilmember Carl Hatfield submitted his written complaint, noting that during their conversation that morning she "confirmed the fact that a meeting of three [C]ouncil members, yourself and an attorney took place in the back office of City Hall on September 28, 2010." Mr. Hatfield further observed that a "fourth [C]ouncil member was present in an adjoining office according to [C]ouncil member Norma Bowyers," 1 who "also stated that [C]ity business concerning pending litigation was discussed." Citing KRS 61.823 (notice requirements for special meetings), Mr. Hatfield also complained that he was not notified that a group was meeting to discuss the litigation despite having every "right and responsibility to attend any gathering of [C]ouncil members convened for the purpose of discussing [C]ity business, whether it is an open or legally closed session. " In his view, "this illegal meeting was the primary reason that the regular scheduled meeting to be conducted on Tuesday, October 12th, failed to take place." 2
In a timely written response, Mayor Cornett advised that "no meeting of the Council" occurred. Rather, individual members of the Council as well as former Planning and Zoning Chairman Don Disney met with attorney Brandon Jones from the law firm of Hamm, Milby and Ridings in reference to Emma Gist v. The City of Cumberland, et. al., Civil Action No. 10-CV-144 GFVT. Mayor Cornett explained:
The attorney representing the City is Brandon Jones. You were not named as a Defendant in this action. Mr. Jones was meeting with the named Defendants in this action[, those being] me, [P]lanning and [Z]oning [C]omission [C]hairman, Don Disney, Norma Bowyers, Yvonne Gilliam, and Eugene Stagnolia. Although this group includes three (3) Council members, their meeting with their attorney is not considered a violation of the Open Meetings [Act] and is exempt from the Open Meetings Act under KRS 61.810(1)(c), as pending litigation and is additionally exempt under the attorney/client privilege for pending litigation. The discussions of this group related directly to the pending litigation in Emma Gist v. The City of Cumberland, et al.
See OAG 97-001; 92-OMD-1278 (12-1-92).
Upon receiving notification of Mr. Hatfield's appeal from this office, City Attorney S. Parker Boggs issued a response on behalf of the City which, for the most part, mirrored the City Council's initial response. Mr. Boggs also included a copy of a page of a pleading from the subject litigation as verification that Mr. Hatfield is not a named defendant in that action. Mr. Boggs noted that he was also excluded from the "conference." Because three members of the City Council do not constitute a quorum of that agency, 3 no public meeting occurred; accordingly, the requirements of the Open Meetings Act did not apply. 4
Mr. Hatfield's complaint is apparently premised upon the erroneous belief that a meeting occurs within the meaning of KRS 61.810(1) anytime that members of a public agency discuss public business. However, KRS 61.810(1) expressly 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, except for [certain exceptions codified at (1)(a)-(m)].
Addressing the potential for subversion of the intent of the Act which exists with 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 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 therefore 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 which are held for the purpose of circumventing the requirements of the Act.
The Court in Yeoman further 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).
Id. Because there is no evidence 5 in the record on appeal that a quorum of the members of the City Council was present at a single meeting from which the public was excluded, or that the members engaged in a series of less than quorum meetings for the purpose of avoiding the requirements of the Open Meetings Act, our analysis proceeds no further.
In 93-OMD-63, the Attorney General determined that a gathering of legislative leaders held for the purpose of discussing a health care reform proposal did not constitute a violation of the Open Meetings Act. At page 6 of the decision, the Attorney General observed:
Many of the elements of a "meeting" are present in the situation under discussion. The [announcement] indicated that there would be a gathering constituting an informational session. Public business was involved as the matter to be discussed was the health care reform proposal, the matter then pending before the General Assembly.
However, as indicated by KRS 61.810(1), one of the elements necessary to constitute a public meeting is the presence of a quorum. [The presiding officer] has specifically stated that a quorum was not present and nobody has . . . refuted that statement. Thus, if a quorum was not present the meeting in question was not a public meeting under the Open Meetings Act.
This office also rejected the complainant's alternative claim that the gathering violated KRS 61.810(2), relating to meetings of less than a quorum, reasoning:
Note that KRS 61.810(2) begins with the phrase "any series of less than quorum meetings." Thus to utilize this exception it must be shown that the public agency is meeting with less than a quorum over a series of meetings to avoid the application of the provisions relating to open and public meetings. In the situation relative to this appeal there has only been one meeting. KRS 61.810(2) is not applicable here.
93-OMD-63, p. 7. As in 93-OMD-63, the record on appeal only establishes that one meeting occurred; accordingly, KRS 61.810(2) is not implicated.
The analysis contained in 00-OMD-200 and 04-OMD-073 is controlling on the sole question presented here; a copy of each decision is attached hereto and incorporated by reference. Based upon the foregoing, and consistent with both of these decisions, the Attorney General concludes that no violation of the Open Meetings Act occurred. See also 05-OMD-164. The Cumberland City Council is apparently comprised of at least six members and, therefore, at least four members of that agency must be present for a quorum to exist; only three were present for the discussion held on September 28. "Because there was no quorum, there was no meeting." 94-OMD-63, p. 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.
Carl R. HatfieldLoretta H. CornettSteven Parker Boggs
Footnotes
Footnotes
1 Because the record on appeal is devoid of any objective proof to substantiate this claim, and whether a member was also present in the adjoining room is not necessarily determinative, in any case, this office must assume for purposes of the instant appeal that only three members of the City Council were present when the litigation was discussed.
2 Although Mr. Hatfield failed to propose a remedy as required under KRS 61.846(1), the City did not raise this argument initially or in responding to his appeal. Further, a review of his complaint reveals that holding a properly noticed special meeting at which the lawsuit is discussed (presumably in a properly held closed session if litigation strategy or tactics are involved) would remedy the situation from his perspective.
3 Cumberland is a city of the fourth class and its City Council is therefore required to have "[n]ot less than six (6) nor more than twelve (12) members" per KRS 83A.030(1). According to the Member Directory found on the Kentucky League of Cities' website at http://www.klc.org/directory.asp?city=359, the City of Cumberland City Council has a total of six members. The 2008-2009 Kentucky Directory Gold Book identifies a total of seven members. Regardless of which total is currently accurate, more than three members would have to be in attendance for a quorum to be present. See KRS 83A.060(6) ("Unless otherwise provided by statute, a majority of a legislative body shall constitute a quorum and a vote of a majority of a quorum shall be sufficient to take action"); 4 McQuillin, Mun. Corp. (3rd Ed.) § 1327.
4 OAG 97-001, upon which the City relied, is not controlling here nor does it validate the City's position relative to application of the attorney-client privilege in this context. Rather, OAG 97-001 establishes that 96-OMD-191 "extends the attorney-client privilege beyond that allowed by the Act." OAG 97-001, p. 2. That opinion further acknowledges that KRS 61.810(1)(k) "does not permit an executive [or closed] session premised on the attorney-client privilege." Id., p. 3. Because the City is a party to pending litigation, and the September 28 discussion apparently centered on litigation strategy and tactics, the City Council would have been able to hold a closed session per KRS 61.810(1)(c) during either a properly noticed special or regular meeting for the purpose of having that discussion assuming, of course, that it otherwise complied with relevant provisions of the Open Meetings Act such as KRS 61.815. See 03-OMD-178 (reaffirming the rule announced in OAG 97-001, "that the attorney client privilege cannot be used to close an otherwise public meeting unless the discussions between the attorney and client directly relate to proposed or pending litigation against or on behalf of the public agency" ).
5 As previously indicated, an unsubstantiated assertion by the complainant regarding a fourth member being in proximity does not suffice.