Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the actions of the Louisville Metro Council during its regularly scheduled meeting on June 24, 2010, at which it enacted the 2010-2011 Capital Budget Ordinance for Louisville/Jefferson County Metro Government, violated the Open Meetings Act. In the December 27, 2010, complaint Jon L. Fleischaker submitted on behalf of his client, The Courier-Journal, he specifically alleged that "Item 122 of Ordinance 118, Series 2010, As Amended, and as passed on June 24, 2010, reflects an appropriation or authorization for 'Kentucky Fair Board for Marketing' in the amount of $ 60,000.00'" but in actuality Line Item No. 122 "authorized money for the unstated purpose of hiring legal counsel, J. Bruce Miller, to work to acquire a National Basketball Association team for Louisville." In failing to disclose this purpose, Mr. Fleischaker alleged, the Council violated the Open Meetings Act because "it is tantamount to an action taken in secret. " Because the minutes of that meeting "fail to state that the $ 60,000 allocation was intended to hire Mr. Miller to work to secure an NBA team for Louisville," in the Courier's view the minutes "do not set forth an accurate record of the vote and action on Ordinance 188, Series 2010, in violation of KRS 61.835." Although the phrasing of this motion to amend the ordinance was not a model of specificity, this office finds the Council's position regarding these issues of first impression, as outlined below, persuasive and thus respectfully declines to find that its action constituted a violation of the Open Meetings Act notwithstanding the significant policy considerations that weigh in favor of greater specificity being provided.
Mr. Fleischaker noted in his December 27 complaint on behalf of the Courier that "[n]either the Action Summary nor the Minutes [relevant portions of which Mr. Fleischaker attached to his appeal] reflect any other discussion of this amendment." The amended ordinance passed with a vote of 24 to 1. Citing the legislative statement of policy codified at KRS 61.800 ("? formation of public policy is public business and shall not be conducted in secret ..."),
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997)("? failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good"), and
Lexington Herald-Leader v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (Ky. 1987), Mr. Fleischaker argued that by "its vote on June 24, 2010, the Council not only failed to maximize notice of its action, it consciously avoided giving [the] public any notice of its real action." Mr. Fleischaker also claimed that in failing to specify the actual purpose of the appropriation, the Council violated KRS 61.835 (minutes of a public meeting, "setting forth an accurate record of votes and actions taken at such meetings, shall be promptly recorded . . ."). According to Mr. Fleischaker, the Council "intentionally concealed details of its final action from the public," which is "precisely the kind of secrecy that the Open Meetings Act was intended to prevent." 1 To remedy these alleged violations, the Courier proposed that the Council acknowledge that its vote on June 24, 2010, violated the Open Meetings Act, "amend the public record to correctly reflect the content of Line Item No. 122," and "comply with the provisions of the Open Meetings Act in the future by stating the subject matter of all appropriations and correctly reflecting such actions in its minutes. "
In her January 7, 2011, 2 response on behalf of the Council, Assistant Jefferson County Attorney Terri A. Geraghty explained that the amendment "changed the original non-specified District 21 funding for 'designated projects' to a specified funding designation by District 21 for $ 60,000 to go to the 'Kentucky Fair Board for marketing' and was in full compliance with the requirements of Section 'N' of the ordinance. " The record, Ms. Geraghty advised Mr. Fleischaker, "accurately reflects the amendment as proposed and voted upon by the [C]ouncil. The fact you believe that the exact wording of the designation as to the funds should be more specific or reflect differently is not a violation of Section 'N' of the ordinance or of the Open Meetings Act. "
In further support of her client's position, Ms. Geraghty argued:
The Open Meetings Act requires that the minutes of 'action taken' at every meeting of a public agency set forth an accurate record of votes and actions [at] such meetings. KRS 61.835. The statute does not give any other direction on the content of the minutes. The Attorney General has stated that [his] office has no power to tell an agency what should or should not be contained in the minutes of a public meeting beyond what is required in the statute. 03-OMD-116. A review of the video recording of the June 24, 2010, meeting and the provided transcript clearly show that the minutes accurately reflect the record of the vote and action taken as to the specific amendment and as to the entire ordinance as amended. You have proposed that the public record should be amended to reflect that the intent of Item 122 was for funding to hire legal counsel, J. Bruce Miller, to work to acquire a National Basketball Association team for Louisville. Amending the record to change the wording of the designation as was actually proposed by the [C]ouncil on June 24, 2010, to reflect what you suggest was the intent of the [C]ouncil would constitute a violation of the Open Meetings Act.
KRS 61.835 requires public agencies to maintain "an accurate record of votes and actions taken" at every meeting. (Emphasis added.) In 04-OMD-179, the Attorney General recognized that minutes of a public meeting could only be changed if they inaccurately reflected the vote actually taken by the agency.
Having quoted an excerpt from page 9 of that decision ("minutes may be amended at a subsequent meeting to conform them to the facts, but not to reflect a change in position on the matter involved in the question voted on"), Ms. Geraghty observed that although Mr. Fleischaker objects to the "propriety of the wording" used in designating a funding item in the capital budget, his allegations do not constitute a violation of the Open Meetings Act. Neither party cited nor has our independent research located any prior decisions by this office that are directly on point. Although the Courier makes a compelling argument from a policy standpoint, particularly on the unique facts presented, the letter of the law validates the Council's position.
By letter dated January 14, 2011, Mr. Fleischaker initiated this appeal on behalf of the Courier, initially reiterating that the vote "was tantamount to an action taken in secret, because it concealed from the public the actual content of the action," and that "[i]n effect, the minutes merely furthered the concealment of the vote and action at the meeting, in violation of KRS 61.835." He further contended that the Council's response did not "substantively address" the Courier's complaint, "which is that the failure to state that that appropriation was for the Miller-NBA project made the action the equivalent of a secret vote." Rather, the Council essentially stated that "its minutes accurately reflect the fact that it did not tell the public that it was financing the Miller-NBA project." In the Courier's estimation, the parties agree on this point: "The Council did not provide public notice on June 24, 2010, that it was conducting a vote on the Miller-NBA project, even as it conducted such a vote."
Having quoted KRS 61.800 and the previously referenced case law, Mr. Fleischaker then asserted that in this case the Council "went out of its way to consciously mislead the public and cover up the fact it was appropriating public money for the Miller-NBA project." The Council's vote, and the resulting minutes, he continued, "run directly against the grain of the strong public policy of the General Assembly and holdings of Kentucky courts." According to Mr. Fleischaker, taking a public vote "on a cryptic motion" is "every bit as inconsistent with the letter and the spirit of the Open Meetings Act as is a secret vote in a closed meeting or a secret ballot in an open meeting," both of which are prohibited. See KRS 61.815(1)(c) and 07-ORD-201, respectively. 3
In further support of his client's position, Mr. Fleischaker noted that in his December 12, 2010, report to Harold Workman, President and CEO of the Kentucky State Fair Board, J. Bruce Miller, attorney, stated that a Councilman asked him to begin working on the NBA project before the June 24, 2010, vote, and that his understanding was that the $ 60,000 appropriation was awarded to KSFB for this purpose and was "passed unanimously by the City Council and that every [C]ouncilperson understood its purpose." Relying upon this report, a copy of which is attached to his letter of appeal, Mr. Fleischaker argued that "Mr. Miller therefore confirms that the Council could have stated that it was earmarking money for the NBA project, but simply elected not to tell the public that it was doing so." For these reasons, the Courier believes the vote of June 24, 2010, was the equivalent of a secret vote in violation of the Act. It follows "that the minutes reflecting that vote also constitute a violation of the Act to the extent they omit the Miller-NBA project, because they fail to set forth an accurate record of the action taken at the June 24, 2010, meeting."
Upon receiving notification of Mr. Fleischaker's appeal from this office, Ms. Geraghty supplemented her response on behalf of the Council. She initially provided the following context:
The [C]ouncil meeting held on June 24, 2010, was a properly noticed regular meeting. All members of the public could attend. The agenda for the meeting was provided on the [Council's] website. The [C]ouncil did not go into any closed sessions during the meeting and all topics announced on the agenda were discussed in open session and all actions and votes were taken in open session. The minutes of the June 24, 2010, meeting reflect an accurate record of votes and actions taken at the meeting and were unanimously approved by the [C]ouncil without changes at the next meeting. Among the items voted on at the June 24, 2010, [C]ouncil meeting was Metro Louisville Ordinance 118, Series 2010 which related to the 2010-2011 Capital Budget for Metro Louisville. As originally proposed the ordinance contained a listing of seventy-four (74) appropriations. Additional appropriations were proposed at the Budget Committee meetings held on June 23, 2010, which increased the total number of appropriations to one hundred thirty (130). Among the additional appropriations was an appropriation of sixty thousand ($ 60,000) to "D21 Designated projects." At the June 24, 2010, [C]ouncil meeting a motion was made and vote taken to amend the appropriation to reflect that the [$ 60,000] appropriation was to be for the "Kentucky Fair Board for Marketing. "
Ms. Geraghty attached a copy of the minutes from the June 24, 2010, meeting to her January 26, 2011, response, which, in short, validates the accuracy of the foregoing summary in relevant part.
Citing 02-OMD-11, Ms. Geraghty then correctly observed that our function in reviewing an appeal filed under the Open Meetings Act "is restricted to a determination of whether the agency violated the provisions of the Act." Noting that Mr. Fleischaker "does not cite to any section of the Open Meetings Act that contains any requirement of what must be contained in a motion or vote taken by the members at a public meeting, " Ms. Geraghty reiterated that KRS 61.835 only requires that minutes contain "an accurate record of votes and actions at [the] meeting[]." Ms. Geraghty further asserted:
With respect to the rules established by an agency beyond this, the Attorney General has observed that "the state legislature has not dictated ? procedural rules relating to the conduct of meetings, and as a consequence, each legislative body must adopt its own rules of procedure." OAG 78-522. Thus, how an agency conducts its business, such as the wording of motions is not addressed by the Open Meetings Act. The motion and vote taken by Metro Council was conducted in open session at a public meeting. It indicated the amount of the appropriation was $ 60,000. It indicated that the money was to be appropriated to the [KFB] and it indicated the purpose was for marketing. Mr. Fleischaker believes the motion should have indicated that the [KFB] for marketing purposes intended to hire Mr. Miller to work to acquire a [NBA] team for Louisville. Mr. Fleischaker fails to state a violation of the provision[s] of KRS 61.805 to 61.850 and is requesting that the Attorney General to [sic] resolve a dispute that involves issues that are beyond the scope of the Open Meetings Act.
. . .
The fact that Mr. Fleischaker believes the motion "should have or could have" been more accurate if it indicated who the [KFB] intended to hire for marketing purpose[s] does not mean that the minutes inaccurately reflect the vote actually taken by the [C]ouncil. Minutes constitute legal evidence of what transpires at public meetings and cannot be altered "to show something other than what actually occurred at [those] meetings." OAG 77-494.
Relying upon prior decisions of this office, and 04-OMD-179 (quoting OAG 79-96 in part) in particular, Ms. Geraghty asserted in closing that Mr. Fleischaker's complaint regarding how the Council worded its motion "is not cognizable under the Open Meetings Act insofar as it does not state a violation of the provisions of KRS 61.805 to 61.850." Given the underlying policy of the Open Meetings Act expressed at KRS 61.800 as well as general principles consistently expressed in judicial opinions, this office does not believe that Mr. Fleischaker's complaint is entirely without merit. However, a careful review of the Open Meetings Act (which does not directly address how specific a motion being voted upon must be or the content of minutes beyond KRS 61.835), in addition to prior decisions, including those relied upon by Ms. Geraghty, compels the Attorney General to find in favor of the Council.
Fundamental to our analysis of any issue arising under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided by law shall be strictly construed.
Recognizing that extraordinary circumstances occur which might justify a public agency discussing public business during a closed session, the General Assembly created a number of exceptions to this general rule, which are codified at KRS 61.810(1)(a)-(n). To promote the goal of maximizing notice to the public, the General Assembly also enacted KRS 61.815(1)(a)-(d) (notice requirements for conducting a closed session) , KRS 61.820 (requiring that a schedule of regular meetings be publicly available), and KRS 61.823(3) and (4) (notice requirements for special meetings). Generally speaking this office is asked to determine whether a public agency has properly relied upon one or more of the statutory exceptions codified at KRS 61.810(1) in holding a closed session and/or whether a public agency has fully complied with KRS 61.815 before going into closed session and/or whether a public agency has provided sufficient notice prior to a meeting in compliance with KRS 61.820 or KRS 61.823.
Neither the courts nor this office have previously been confronted with the first question presented here, resolution of which dictates how the second regarding application of KRS 61.835 is resolved, and which essentially is: How much specificity is required in a motion describing a matter being voted upon by a public agency during an open, public meeting to provide sufficient notice to the public of the final action being taken? As Mr. Fleischaker correctly noted, the General Assembly and the judiciary have consistently demonstrated their commitment to "open government openly arrived at." 00-OMD-113, p. 2 (citation omitted). Although this office is guided by KRS 61.800 and the general principles articulated over the years by the courts, the analysis does not end there.
This office also remains committed to ensuring that public agencies comply with provisions of the Open Meetings Act by discussing public business in a public forum; however, the role of the Attorney General in resolving disputes arising thereunder, as Ms. Geraghty noted, is narrowly defined at KRS 61.846(2) to include only issuing a written decision "which states whether the agency violated the provisions of KRS 61.805 to 61.850." 4 This appeal does arguably present a closer question than, for instance, a dispute centered on whether a public agency has complied with its own procedural rules (beyond the minimum thresholds established in the Act), which cannot be resolved in this forum. See OAG 78-522; 05-OMD-200. However, the Act does not specifically establish a standard by which this office can assess the content of motions voted upon by public agencies. Regardless of how tempting it may be in some circumstances, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002). Assuming that the project undertaken by Mr. Miller can be properly characterized as "marketing, " this office must agree with Ms. Geraghty's analysis of the first question presented. Accordingly, this office concludes that no basis exists upon which to find that a violation occurred notwithstanding the fact that more specificity in the description was preferable, if not expressly required, if the Council was, in fact, aware of the specific purpose for the appropriation when the vote was taken.
Given this determination, it logically follows that the Council complied with the literal terms of KRS 61.835 (requiring that minutes of public meetings contain an "accurate record of votes and actions" and be "promptly recorded" and open to public inspection "at reasonable times no later than immediately following the next meeting of the body") by accurately recording the vote and resulting action. Early on, the Attorney General construed this provision, unchanged since its enactment in 1974, to require that minutes of a public meeting show only "the formal actions taken and the votes cast by the members," and not to require the minutes of the meeting "to summarize the discussion or record what any of the members said." OAG 81-387, p. 2. This office relied on the express language of the statute as well as "the foremost authority on parliamentary procedure, Robert's Rules of Order, Newly Revised, . . . [stating] that minutes should contain mainly a record of what was done at the meeting, not what was said by the members." Id. at 1. For these reasons, the Attorney General concluded that "anything more than [a record of votes and actions] is a matter of parliamentary procedure and the discretion of the public body." Id.
Inasmuch as the Council is not permitted to modify the minutes "to show something other than what . . . actually occurred at the previous meeting," and the minutes of its June 24, 2010, meeting reflect that a motion was made by Councilman Jim King to amend the ordinance to specify that "District 21 wants to designate their $ 60,000 in funding to go to the Kentucky State Fair Board for marketing, " and the parties agree that was the literal wording of his motion, which passed unanimously, the minutes cannot now be altered to reflect otherwise. Just as the agency in 04-OMD-179 was not permitted to modify the minutes of the challenged meeting to reflect compliance with KRS 61.815(1)(a), when the agency had not achieved compliance in reality, the Council is not permitted to modify the minutes of its meeting to reflect anything other than what Councilman King actually said, regardless of whether the motion could or even should ideally have described the action being taken with greater specificity. This office cannot "read a requirement into the statute that does not otherwise exist." 03-OMD-006, p. 5.
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.
Jon L. FleischakerTerri A. Geraghty
Footnotes
Footnotes
1 Mr. Fleischaker also claimed that the Council failed to comply with Section N of the ordinance, which provides that "Projects contained in this ordinance not specifically identified must be identified by an amendment to this ordinance before funds can be disbursed." This office has recognized that the Attorney General is "'not empowered to adjudicate a dispute relating to interpretation of, and complian[ce] with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.], in this context." 10-OMD-143, p. 4, citing 10-OMD-120. In any event, the Council sufficiently addressed this concern in responding to his complaint, which is presumably the reason that the Council does not reiterate this argument on appeal.
2 To the extent the Council failed to issue a written response within three business days of receiving the Courier's December 27, 2010, complaint it violated KRS 61.846(1). Because neither party addresses the timeliness of the agency's response, and the record lacks any evidence regarding this issue, further discussion is unwarranted.
3 Although the Courier also partially relied on a recent Opinion and Order of Christian Circuit Court, namely Kentucky New Era, Inc. v. Hopkinsville City Council, Civil Action No. 10-CI-00202, (reversing 10-OMD-007 and holding that vaguely worded motion following a closed session "did not sufficiently apprise the public of what action was being taken" and "the public should not be required to infer or guess or speculate as to the specific action is being taken"). On appeal Ms. Geraghty argued that the wording of the vote taken by the agency in that case "would not have been addressed by the court or would not [have] been found to be a violation of the Open Meetings Act if it had not been related to final action taken on matters discussed in closed session. " This authority is not binding precedent and, perhaps more significantly, is factually distinguishable. Further discussion is therefore unwarranted.
4 See also Commonwealth v. Chestnut, 250 S.W.3d 655, 662-663 (Ky. 2008) (holding that Attorney General's "role here is simply to construe the open record laws as the General Assembly has enacted them" in construing roles of Attorney General and Court of Justice with regard to Open Records and, by extension, Open Meetings Acts).