Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Office of the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the steering committee formed in 2009 "to meet and explore the feasibility of inter-connecting and, possibly consolidating the water and sewer utilities" in the cities of Cumberland, Benham, and Lynch, was a public agency from inception as defined in KRS 61.805(2)(f). The mayors of each of these cities appointed two councilmen to serve on the committee of six, which we will refer to as the Tri-City Utilities Steering Committee but which has also been referred to as an exploratory group. The committee therefore constituted an "entity when the majority of its governing body is appointed by . . . a state or local officer, or any combination thereof," and its failure to comply with the Open Meetings Act constituted a violation of the provisions of KRS 61.805 to 61.850.
In a complaint dated March 2, 2011, Tri-City News reporter Faith Clark alleged that the steering committee "intentionally, and purposely" refused to comply with the Open Meetings Act to avoid public scrutiny of its discussions. In support, Ms. Clark quoted a participant as having stated that the items discussed "didn't need aired out in public." As a means of remedying the violation, she proposed that "any documentation associated with these meetings be provided immediately to the public" and that "allegations or decisions taken during these meetings, or ordinances or resolutions passed by the city on this committee's behalf, be considered null and void due to the flagrant and intentional avenues taken to subvert the . . . laws."
On March 31, 2011, 1 Damon R. Talley, responded on behalf of his client, Tri-City Utilities Authority, Inc., "a joint agency and instrumentality of the Cities of Cumberland, Benham, and Lynch (created by) Resolutions adopted by the three cities" and incorporated on December 21, 2010. Mr. Talley denied that the steering committee that preceded the Authority in time was a public agency. He explained:
During the latter part of 2009, each of the Mayors of Cumberland, Benham and Lynch appointed two (2) city council members to meet and explore the feasibility of inter-connecting and, possibly, consolidating the water and sewer utilities of each of the three (3) cities. This group met on several occasions throughout 2010. This group was not a legal entity. It was not a corporation. It was not formed pursuant to the Interlocal Cooperation Act. It had no governing body. It had no authority. It had no legal status.
Mr. Talley characterized the "exploratory group" meetings as gatherings "of a group of public officials from various governmental entities (cities) where none of the governmental entities was represented by a quorum. " In later correspondence directed to this office, he emphasized that the cities that established the group took no formal action "to create an 'interagency body' or other entity. " Continuing, he noted that the cities granted the group no authority and that the group itself took no action. In response to Ms. Clark's argument that the group was a public agency for open meetings purposes, Mr. Talley asserted that 96-OMD-174 and 94-OMD-148, holding that "a meeting consisting of a group of public officials, where none of the entities is represented by a quorum, does not constitute a meeting of a public agency . . .," are dispositive of the issue on appeal. Respectfully, we disagree.
At page 2 of 96-OMD-174, this office contrasted a "gathering of public officials, legislative and executive, from various governmental entities, meeting voluntarily and not pursuant to any statute, ordinance, order, resolution, or any other kind of act of any public agency" with the definition of public agency found at KRS 61.805(2), and concluded that the gathering did not trigger the requirements of the Open Meetings Act. Similarly, in 94-OMD-148 we rejected a claim that meetings of various city and county officials and invited guests on a periodic basis to improve cooperation among governmental entities constituted a violation of the Act since the steering committee lacked formal authorization, formal membership, a formal agenda and minutes, made no formal recommendation and took no formal action. The steering committee at issue in this appeal and the bodies at issue in 96-OMD-174 and 94-OMD-148 are similar in only one respect. They are comprised of representatives of more than one public agency. The similarities end there.
As noted, KRS 61.805(2)(f) defines the term "public agency" as "[a]ny entity when the majority of its governing body is appointed by a 'public agency' as defined in paragraphs (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a 'public agency, ' a state or local officer, or any combination thereof." The mayors of the cities of Cumberland, Benham, and Lynch are local officers. Each of them "appointed" two members of his or her city's council to the six member steering committee "to meet and explore the feasibility of inter-connecting and, possibly, consolidating the water and sewer utilities of each of the three cities." On behalf of the steering committee, Mr. Talley employs the term "appointment" to describe the mechanism by which each of the mayors designated his or her city's representatives. KRS 61.805(2)(f) is facially applicable to the steering committee.
The fact that the steering committee was comprised of less than a quorum of the members of the councils from which it originated does not alter this conclusion, nor does the fact that the steering committee was not empowered to take action but instead operated in an advisory role. Because the steering committee, in and of itself, constituted a public agency within the meaning of KRS 61.805(2)(f), we do not examine the total composition of the councils whose mayors appointed its members to determine the presence of a quorum of the steering committee, but the total composition of the committee itself. The steering committee consisted of six members. A quorum of the steering committee was present, and a meeting occurred, when four or more of its members came together to discuss public business "regardless of where the meeting [was] held, and whether [it was] regular or special and informational or casual [and was] held in anticipation of or in conjunction with a regular or special meeting." KRS 61.805(1).
The fact that the steering committee had no authority to take action does not alter our view. KRS 61.810(1) states that "[a]ll 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 . . . ." In construing this provision, the Attorney General has focused on the use of the disjunctive particle, "or," rather than the conjunction, "and." 98-OMD-94; 99-OMD-117; 00-OMD-96; 03-OMD-187; 06-OMD-068; 10-OMD-043. On those occasions when a quorum of the members of a public agency are present and the members discuss public business or take action, the requirements of the Open Meetings Act must be observed. This occurred on each of seven occasions when the Tri-City Utilities Steering Committee met in 2010 to explore the feasibility of inter-connecting and, possibly, consolidating the water and sewer utilities of the three cities. Given the steering committee's critical role in the formation of public policy, "[a]ny other holding would clearly thwart the intent of the law." 2 Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (Ky. 1987). 3 Accord 06-ORD-145.
As reflected in its Preamble, the Open Meetings Act does not "give . . . public servants the right to decide what is good for the public to know and what is not good for them to know," 4 or stated alternatively, what does or does not "need aired out in public." Any attempt to limit the public's right to know by creating bodies aimed at avoiding the requirements of the Act is inimical to this fundamental principle. The Tri-City Utilities Steering Committee violated the provisions of the Open Meetings Act by failing to notify the public of, and admit the public to, its meetings, by failing to conduct its meetings at times and places convenient to the public and under conditions that allowed effective observation, by failing to record minutes of its meetings, and, where circumstances warranted, by failing to comply with the requirements for conducting special meetings or going into closed session. There is no construction of the Open Meetings Act that supports any other conclusion.
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.
Distributed to:
Faith ClarkDamon R. Talley
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