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 allegations leveled against the Lyndon City Council by Alan D. Blincoe in his May 17, 2011, complaint addressed to Mayor Susan Barto are substantiated, in part, but that conflicting factual accounts of what occurred at the disputed May 16, 2011, meeting preclude a finding that Mr. Blincoe's allegations are substantiated in full.
In his May 17 complaint to Mayor Barto, Mr. Blincoe alleged that the council improperly convened a meeting 1 before the published starting time, 6:00 p.m., and that upon his arrival at 6:01 p.m., the discussion concerning the published topic, the city's road fund, had concluded. Upon his request for "information from the minutes" reflecting the discussion, he alleged, the Mayor erroneously advised him that because the gathering was a "workshop," the council was not required to keep minutes. As a means of remedying these alleged violations, Mr. Blincoe proposed that the council "provide minutes or a written report of the discussion surrounding the public meeting . . . at the next scheduled meeting of the . . . council . . . ."
By letter dated May 18, 2011, Mayor Barto denied these allegations and refused to implement the proposed remedy. She maintained that the meeting "opened at 6:00 p.m." and that Mr. Blincoe was "sitting at the table in the meeting room . . . when the public hearing was called to order . . . ." After responding to a single question from a council member concerning the road fund, Mayor Barto stated that she called for further comments and, hearing none, "proceeded to the informal city caucus portion of the evening." She acknowledged Mr. Blincoe's objection to the handling of the road fund hearing, but noted that he was afforded an opportunity to make his comments and those comments were included "in the draft minutes of the road fund hearing" which she attached. Shortly thereafter, Mr. Blincoe initiated this appeal, "vehemently deny[ing]" the Mayor's narrative of the May 16 meeting and reasserting that when he arrived at the meeting room at 6:01 p.m., "the Road Fund matter was closed."
In supplemental correspondence directed to this office after Mr. Blincoe initiated his appeal, Lyndon City Attorney John Singler expanded on the law and facts underlying this appeal. He explained:
Lyndon holds two meetings each month and both are defined in the city ordinances. The regular meeting of the City is held on the 4th Monday of each month at 6 p.m. The City also holds a caucus meeting on the third Monday of each month at 6 p.m.
City ordinance further described the caucus meeting to be "? an informal meeting ? No final action shall be taken ...." The public is invited to attend, but "...the attendance of the City Council members shall not be mandatory. " Finally, the ordinance states that, "The taking of minutes at the Caucus Meeting shall not be required."
The idea of the caucus was to allow the public to have direct access to the City administration and voice their opinions on any subject they wish, every month at a regular time and place. As directed by the ordinance, no votes can be taken in the caucus meeting, therefore there are no votes to be recorded.
Mr. Singler maintained that Mr. Blincoe entered the meeting room one or two minutes after Mayor Barto promptly convened the 6:00 meeting and began discussion of the road fund budget. She entertained one question after his arrival and called for further comment. Because there was none, Mayor Barto announced that the "public hearing portion of the meeting was closed and that the caucus meeting was open for public comment" over Mr. Blincoe's objections. Mr. Singler indicated that although the city does not take minutes of its caucus meetings, it does keep minutes of the road fund public hearings. In support, he provided this office with the minutes of the last five hearings.
We find that the Lyndon City Council violated KRS 61.835 2 by failing to promptly record minutes of its May 16 meeting since a quorum of the council members were present and public business was discussed. The adoption of a city ordinance relieving the council of this legal obligation does not alter our conclusion. Shortly after the enactment of the Open Meetings and Open Records Laws, the Attorney General declared that in enacting these laws "the General Assembly has pre-empted the field" of law governing meeting access and records inspection. OAG 83-435, p. 2. Thus, a city cannot by ordinance, or other legal device, abrogate or supersede the mandatory provisions of the Open Meetings or Open Records Acts. Accord, 92-ORD-1136; 94-ORD-64; 00-ORD-117; 01-ORD-63.
Lyndon's Code of Ordinance Section 32.21 establishes three kinds of public meetings: regular meetings, special meetings, and caucus meetings. The latter is described as "an informal meeting to be held monthly" which the public may attend but which council members are not required to attend. The Open Meetings Act recognizes only two kinds of public meetings: regular meetings at KRS 61.820 and special meetings at KRS 61.823 3 and is superior to the city's ordinance. Because the "caucus meeting" dates appear on the schedule of regular meetings, the meetings are regular meetings if a quorum of the members of the agency attend and a discussion of public business occurs. 94-OMD-50, p. 4; 03-OMD-197. All such meetings must be memorialized in minutes as required by KRS 61.835 even if no action is taken. Thus, at page 6 of 05-OMD-117, the Attorney General reaffirmed the long-standing principle that "[t]he requirement that the agency record minutes of its meetings is triggered regardless of whether action is taken at the meeting." Continuing, we observed that "[a]t a minimum, the minutes should reflect that the meeting was convened, the minutes of the last meeting were approved, and the meeting was adjourned." 99-OMD-166, p. 5, cited in 05-OMD-117. The council's failure to comply with KRS 61.835 with regard to all or any portion of its May 16 meeting constituted a violation of the Open Meetings Act.
The question of whether the Lyndon City Council violated the Open Meetings Act by convening its meeting prior to the published 6:00 p.m. meeting time does not lend itself to such easy resolution. The council maintains that the meeting was called to order precisely at 6:00 p.m. Mr. Blincoe responds that the "public hearing" portion of the meeting had already concluded when he arrived at 6:01 p.m., leading him to believe that the meeting commenced some time before his arrival. Clearly such action, if it occurred, would justify a holding that the council contravened both the spirit and the letter of the Open Meetings Act by precluding full public participation through the "issu[ance of] false or misleading information as to the meeting's starting time." 99-OMD-153, p. 6; accord, 04-OMD-056 (meeting commencing one-half hour after scheduled start time); 05-OMD-011 (change in meeting location necessitated by scheduling conflict). It seems far more likely, however, that the council's clock was not synchronized to Mr. Blincoe's watch, that the meeting commenced a scant few minutes before the time appearing on his watch, and that the public discussion was brief. Under these circumstances, we would not be justified in assigning error to the council for relying on a malfunctioning clock or a properly functioning clock that was not synchronized with Mr. Blincoe's watch. As to the duration of the "hearing," the Open Meetings Act establishes no legal parameters for the length of discussions of public business and the council cannot be faulted for the paucity of public comments. We are not inclined to speculate on which of these conflicting factual narratives, the council's or Mr. Blincoe's, is closer to the truth, and therefore conclude that the record on appeal neither proves nor disproves the occurrence of a violation of the Open Meetings Act. Nevertheless, we encourage the council to take all appropriate measures to insure full public participation. 4
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). Pursuant to KRS 61.846(5), 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 proceeding.
Distributed to:
Alan D. BlincoeSusan BartoJohn P. Singler
Footnotes
Footnotes
1 We will address the use of various terms to describe the council's meetings in greater depth below. For our immediate purposes, we note that all gatherings, whether they are characterized as public hearings, caucus meetings, workshops, or an alternative description, "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 . . . ." KRS 61.810(1). The council does not dispute the presence of a quorum of its members or the discussion of public business at the May 16 meeting. This, then, was a public meeting for open meetings purposes, and subject to all requirements duly imposed.
2 KRS 61.835 provides, "The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body."
3 On rare occasions, the law recognizes a third kind of meeting: an emergency meeting "which prevents compliance with" the requirements codified at KRS 61.823. KRS 61.823(5). The city does not attempt to, nor could it successfully, argue that the May 16 meeting was an emergency meeting.
4 In 04-OMD-056, we declared that although a thirty minute delay in convening a public meeting did not constitute a violation of the Act, our decision "should not be construed as a license to randomly move meeting times up and back to suite the whims of agency members but as a narrow holding 'reflecting the simple reality that some flexibility must exist to accommodate agency members and meeting participants . . . .'" 04-OMD-056, p. 4, citing 02-OMD-154.