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 Buffalo Trace Area Development District violated KRS 61.835 when it voted by anonymous paper ballot 1 to elect a board member at its February 21, 2012, regular meeting. The conflicting evidentiary record precludes a determination that the board violated KRS 61.810(2) by conducting a series of less than quorum meetings, where the members attending one or more of the meetings collectively constituted a quorum, for the purpose of avoiding the requirements of the Open Meetings Act, to secure the election of a particular candidate.
On February 28, 2012, Lewis County Judge/Executive Thomas Massie submitted a written complaint to Bill Boggs, chairman of BTADD, in which he alleged that Vanceburg Mayor Todd Ruckel and BTADD members conducted private conversations with board members in advance of the February 21 meeting to secure the election of the mayor's nominee and defeat the election of the judge's nominee. In support, Judge Massie observed that "no notice of appointment of a board member was placed on the agenda for the February 21 meeting, yet some members carried proxy votes for absentee members to the meeting." Additionally, Judge Massie alleged that the board improperly conducted the election by paper ballot rather than by roll call vote, that the paper ballots were reviewed by only three members of the board, and that the vote count was not announced. It was his position that the election "was not executed in a manner consistent with the spirit and letter of the open meetings laws."
In a timely response, Chairman Boggs acknowledged that the February 21 vote was conducted by paper ballot after a motion to conduct a roll call vote failed for lack of a second but noted that BTADD's bylaws "do not prescribe the means of conducting the election. " He denied that BTADD employees attempted to secure the election of the mayor's candidate in conversations with board members, conceding only that the employees "receive[d] phone calls regarding the election, specifically with regard to instructions for proxy voting," and "provided proxy appointment forms." Chairman Boggs suggested that Judge Massie direct his concerns about Mayor Ruckel's conduct to Mayor Ruckel, concluding that the judge's "complaint . . . does not appear to pertain to the Kentucky Open Meetings Act, the 'spirit and letter' of which was strictly complied with."
In supplemental correspondence directed to this office after Judge Massie initiated his appeal, Chairman Boggs explained that BTADD's bylaws "describe how a member may utilize a proxy vote in their absence," confirming that BTADD staff "did not initiate contact with board members and offer proxy forms but provided blank proxy forms to members who requested them." Further, he noted that after the paper ballot vote was conducted "[a]n announcement of the nomin[ee] receiving the majority of the votes cast was announced at the end of the meeting." No one in attendance, he concluded, asked to review the ballots. These comments do not alter our view that the board violated KRS 61.835 by conducting its vote on election of a new director by paper ballot.
BTADD, a public agency for open meetings purposes pursuant to KRS 147A.050 and KRS 61.805(2)(d), does not contest the applicability of the Open Meetings Act to its board of directors. It is that law, specifically KRS 61.835, and not its bylaws that "prescribes the means of conducting the election, " or taking any other vote or action at board meetings. 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.
Consistent with the statement of legislative intent declaring that "[t]he formation of public policy is public business, " 2 the Office of the Attorney General has consistently construed KRS 61.835 to require a public vote of the members in attendance and a record of how each member voted.
In an early opinion construing KRS 61.835, this office commented that "When final action is taken by a public agency in open session the vote cannot be by secret ballot and it must be recorded in the minutes how each member voted. " OAG 82-341, p. 2. Nine years later, the Attorney General was asked to opine on the issue of whether the vote of a public agency by secret ballot was permissible as long as the number of votes for and against were properly recorded in the minutes. OAG 91-196. There, we observed:
KRS 61.835 requires in part that the minutes of action taken at every meeting of a public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded. In OAG 82-412, at page four, we said the statute requires that the minutes of the meeting show how each member voted or if he abstained except, if the vote was unanimous, it is sufficient to so state in the minutes. Finally in OAG 82-341, at page one, this office said, "When final action is taken by a public agency in open session the vote cannot be by secret ballot and it must be recorded in the minutes how each member voted. "
Thus, . . . a public body, cannot vote by secret ballot and the minutes of the meetings . . . must indicate how each member voted on each issue before the [public body] . KRS 61.835 is the controlling provision.
OAG 91-196, p. 2. "Although the minutes of the meeting may contain more than the minimum statutory requirement, they may not contain less." 98-OMD-119, p. 5. Because BTADD conducted the vote on a new board member by paper ballot, the minutes of its February 21 meeting did not contain an accurate record of the vote taken and the vote therefore violated KRS 61.835.
In 01-OMD-141 we addressed the propriety of a vote on candidates for a public hospital board by paper ballot, concluding:
Notwithstanding the fact that the ballots used by the members of the Nominating Committee would have been made available for inspection, upon request, at the Committee's March 14 meeting, we believe that the method used for conducting the vote for the six Board of Commissioners candidates can only be described as a secret ballot. While we acknowledge the difficulties associated with conducting a roll-call vote on each candidate, we believe that no other option was available to the Committee, the votes on the candidates not being entirely unanimous. To the extent that the public was unable to ascertain how each member of the Committee voted on each candidate, either by observing the vote, or by reviewing the minutes of the meeting reflecting the vote, we find that the Nominating Committee failed to comply with the requirements of KRS 61.835. By virtue of this provision, the public is entitled to know who voted and how they voted. Any other interpretation of KRS 61.835, is, in our view, "clearly inconsistent with the natural and harmonious reading . . ." of the Open Meetings Act considering the legislative statement of policy codified at KRS 61.800, which recognizes that "the formation of public policy is public business . . . ." Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 682 (Ky. 1992).
01-OMD-141 is dispositive of the issue presented in this appeal. The Open Meetings Act prohibits the use of paper ballots 3 by a public agency in conducting public business, and BTADD's February 21 vote on a new board member therefore constituted a violation of the Act.
The record on appeal contains conflicting evidence concerning discussion of the candidates occurring outside of the public forum. Judge Massie asserts that the members engaged in such conversations in advance of the February 21 meeting. Chairman Boggs refutes this claim, conceding only that BTADD staff furnished proxy ballots to members requesting them prior to February 21. He does not address the conduct of the individual board members. Given this conflicting evidentiary record, we cannot conclusively determine whether the members of the board violated KRS 61.810(2) prior to the contested meeting. Nevertheless, we remind the BTADD Board of Directors that KRS 61.810(2) prohibits "[a]ny 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 [the Open Meetings Act] ." In construing this provision, Kentucky's highest court has declared:
The [Open Meetings] 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). Any discussion of public business among a "rolling quorum" of the board members falls within this zone of prohibited conduct and must be avoided.
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:
Thomas MassieBill Boggs
Footnotes
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