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 meetings appeal, and the Attorney General being sufficiently advised, we find that the record on appeal contains insufficient proof to support the claimed violations of the Open Meetings Act other than the violations acknowledged by Oldham County Ambulance Taxing District Board of Directors. The Open Meetings Act prohibits secret discussions of public business of a quorum of the members of a public agency. KRS 61.810(1). The record confirms the presence of a quorum of the members at various times and places, and the members acknowledge that discussions took place at some of these times and places, but the record is devoid of proof that the discussions related to public business. The board members flatly deny that they engaged in discussions of public business in any non-public forum and the appellant, Bobbi Nelson, presents no proof that they did. 1 This conflicting evidentiary record precludes a determination that the board violated KRS 61.810(1).
In her January 3, 2012, complaint, Ms. Nelson alleged that after the October 5, November 14, and December 12, 2011, board meetings adjourned, "a quorum of board members congregated, which is a violation of the Open Meetings Act. " Continuing, Ms. Nelson observed:
On October 5, 2011, Stan Clark and Dr. Clark were seen going into an office in the courthouse after the scheduled board meeting was adjourned. On November 14, 2011, Dr. Clark and Stan Clark went into an office at the courthouse after the scheduled board meeting was adjourned. Also, noted at this time, Judge Executive David Voegele's vehicle was parked on the opposite side of the courthouse, which would indicate that the Judge Executive was involved in the meeting. On December 12, 2011, [Dr. Rochet] and Stan Clark remained in the Fiscal Court room after the meeting was adjourned. Dennis Tegethoff and Bobbi Nelson stayed for about 30 minutes waiting for [Dr. Rochet], Stan, and Jim Carman to leave. When we finally left the courthouse, we noted Judge Executive David Voegele's car parked in his usual parking space, which could indicate that he was a participant in this meeting.
Additionally, Ms. Nelson alleged that the board violated the Open Meetings Act by conducting meetings by telephone conference calls on June 24, 2011, and December 12, 2011. As a means of remedying these alleged violations, Ms. Nelson proposed that "all information discussed in these meetings be made public at the next board meeting. "
In her January 22 complaint, Ms. Nelson alleged similar violations of the Open Meetings Act. She complained:
On January 9, 2012, after the OCATD Board meeting was adjourned, a quorum of OCTAD board members sat at the bench and discussed the financial report and the recent audit. This is a violation of the Open Meetings Act. The board members participating in this conversation were Dr. Tom Clark and Stan Clark. Witnesses to this conversation were: Bobbi Nelson, Don Dahl, David Stoltz, and Jennifer Jones. Judge Executive David Voegele may also have participated (after the above named witnesses left at 7 PM) since, once again, his car was parked in his usual parking spot at the Fiscal Court building.
Ms. Nelson again proposed that "all information discussed and opinions formulated be made public at the next board meeting. "
In correspondence directed to this office after Ms. Nelson initiated her appeal, Dr. Tom Clark and J. Stanley Clark denied each of her allegations save one. These board members acknowledged that because of a series of exigencies their June 24 and December 12 meetings were, in fact, improperly conducted by teleconference, 2 noting that the board "is now educated on such and will not conduct business in this fashion again." They denied the remaining allegations of Ms. Nelson's complaints, asserting:
The assumption that . . . a discussion [of public business] took place [after the October 5 meeting] is baseless, and no such discussion occurred. Since by law, an ambulance taxing district has only three board members, the assumption that anytime two members are together they are talking about "business" and thus become a quorum subject to open public meetings, is incorrect.
The board refuted Ms. Nelson's claim that a discussion of public business took place following its October 5, November 14, and December 12 meetings and that the proximity of the county judge/executive's office to the public meeting location, and the presence of his car in the parking lot, established his participation in these meetings.
With particular reference to Ms. Nelson's allegations concerning the January 9, 2012, board meeting, the remaining members denied that they engaged in a post-adjournment discussion of the financial report and the recent audit. They commented:
After the meeting was adjourned, the normal routine is to gather up documents to give to Shelley Maxwell, who keeps the minutes, to put with the minutes. The quorum was the two board members Stan Clark and Dr. Tom Clark, as these were the only two members in attendance. Neither recalls any specific discussion of the audit which was discussed in detail at the meeting. Dr. Clark may have asked how the audit went. Stan Clark 3 believes the discussion afterwards related to the fact that he still had an audit left to start work on concerning another District, bringing the total number of audits worked on in the month to four.
The Oldham County Ambulance Taxing District Board of Directors thus denied any improper discussion of public business in a non-public forum with the exception of the telephonic meetings conducted on June 24 and December 12.
The record on appeal contains two widely disparate versions of the events that occurred after the contested board meetings. Given this factual disparity, we cannot conclusively resolve the open meetings issues presented in this appeal for or against the board. We are not empowered to engage in independent fact-finding, and the conflicting statements in the record preclude us from finding that the board violated the Open Meetings Act.
Our analysis proceeds from KRS 61.810(1) which 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.
This provision implements the legislative statement of policy, codified at KRS 61.800, which declares that "the formation of public policy is public business and shall not be conducted in secret . . . ." Kentucky's General Assembly has thus demonstrated its commitment to "open government openly arrived at." 99-OMD-146, p. 4, citing
Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N.J. Super. Ch. 1982)
The Kentucky Supreme Court has recognized that the Open Meetings Act "prohibits a quorum from discussing public business in private or meeting in numbers less than a quorum for the express purpose of avoiding the open meeting requirement of the Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459,474 (1998). Nevertheless, the Court continued:
The mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act.
Id. The Supreme Court thus firmly established that even if a quorum of the members of the agency are present, "[f]or a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency." Id. In the interest of absolute clarity, the Court opined:
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 [agency] has the option to take action.
Id.
The Supreme Court's decision in Yeoman synthesizes some twenty-six years of open meetings decisions issued by the Kentucky Attorney General under a general grant of authority prior to 1992, and a specific grant of authority after 1992. 4 In 1978, for example, the Attorney General stated that a quorum of the members of a public agency may attend a professional or social event, such as a convention sponsored by an entity other than the agency itself, without triggering the requirements of the Open Meetings Act. OAG 78-634. Elaborating on this view, in 95-OMD-136 the Attorney General held that Kentucky law does not require "a conclusion that attendance of a quorum of the members of a public body at a convention or conference organized by someone other than the public agency constitutes a meeting of the public agency. " Nevertheless, this office admonished that agency members "attending such a convention or meeting are not authorized to take action affecting [the agency they represent] nor are they permitted to discuss matters directly affecting their [agency]." 95-OMD-136, p. 3.
Conversely, in a series of decisions also dating back to 1978 the Attorney General has recognized that even a casual gathering of a quorum of the members of a public agency triggers the requirements of the Open Meetings Act if public business is discussed or action is taken. OAG 78-411. Thus, in OAG 80-81 we stated that a city council violated the Act when a quorum of its members met before a regular meeting and decided among themselves how they would vote on a matter subsequently brought before the council at the meeting. Similarly, in OAG 83-102 we held that an agency "committee" comprised of a quorum of the agency's members, along with several others, could not discuss the agency's business in private, reasoning:
Under KRS 61.810 whenever a quorum of the members of any public agency meet and discuss any public business the meeting is a public meeting as defined in the Open Meetings Law, KRS 61.805 to 61.850. Even though the [agency] called itself a committee and added several other people to the "committee" it was required to comply with the Open Meetings Law.
OAG 83-102, p. 3, citing
Courier-Journal v. University of Louisville, Ky. App., 596 S.W.2d 374 (1980). Finally, in 94-OMD-50 we held that a quorum of the members of a fiscal court violated the Open Meetings Act when they met in the magistrates' office to review matters involving the county. See also, 99-OMD-213.
In 00-OMD-147 we considered facts similar to those presented here. Although a quorum of the members of a city council gathered at a local restaurant after their meeting adjourned, no violation could be found since "[t]he record [was] silent as to whether anyone overheard, or was privy to, their discussion . . . [and] no one . . . [came] forward to attest to the content of their conversation. " Id. at 4. Conversely, the council members stated, under oath, that no public business was discussed. "Weighing a doubt against a certainty," we opined that the conflicting evidentiary record precluded a determination that the members violated KRS 61.810(1) by conducting a secret meeting after their public meeting was adjourned, reminding the parties that "the mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act." Id. citing Yeoman at 747.
Ms. Nelson presents no proof to support her claim that the board members discussed public business after the contested public meetings were adjourned. The board denies that any such discussion occurred. Here, as in 00-OMD-147, the conflicting evidentiary record precludes a determination that the board violated the Open Meetings Act. If such post-adjournment discussions of public business did occur, those discussions clearly contravened the provisions of the Act. However, the record before us does not conclusively support or refute this claim.
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:
Bobbi NelsonTom ClarkJ. Stanley Clark
Footnotes
Footnotes
1 Ms. Nelson alleges that the board violated the procedural requirements of the Open Meetings Act, codified at KRS 61.846(1), by failing to respond to her written complaints. She states that she hand-delivered her first complaint to then Board Chairman, Dr. Andrew Rochet, at his place of employment on or about January 9, 2012. She states that she delivered her second complaint to "Oldham County EMS in an envelope addressed to Dr. Rochet" on or about January 22, 2012. Copies of both complaints are attached to the letter of appeal she filed with this office on February 14, 2012. On February 13, Dr. Rochet resigned from the board.
In correspondence directed to this office after Ms. Nelson initiated her appeal, remaining board members Dr. Tom Clark and Stan Clark denied receipt of either complaint. Dr. Rochet has since advised Mr. Clark and Dr. Clark that he cannot locate the first complaint and assumed they received a copy of the second complaint. These "mitigating circumstances" account for the board's failure to respond but do not entirely relieve the board of its statutory duty. Dr. Rochet served as presiding officer of the board during the relevant period, and it was incumbent on him to insure procedural compliance by issuing timely written responses to each complaint pursuant to KRS 61.846(1).
2 It was the board members' position that these meetings otherwise complied with the requirements for conducting special meetings.
3 Stan Clark also serves as Oldham County's Chief Financial Officer.
4 That grant of authority is codified at KRS 61.846(2).