Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Big Sandy Regional Jail Authority violated the Open Meetings Act by conducting an "informal vote" of the members of the authority's board ("board") "as to their preferences" among the candidates for the position of jail administrator at its May 3, 2012, special meeting. Based on established authority recognizing that "[a] straw vote . . . for the purpose of reaching a general consensus among the members [of a public agency] " does not constitute a violation of the Open Meetings Act as long as "final action is taken in open session and the vote of each member, or his abstention, [is] recorded in the minutes, " 1 and our understanding that the board took final action in open session on June 28, 2011, we find that the board did not violate the Act by conducting an "informal vote" in closed session on May 3.
In an undated complaint directed to board chairman Scotty McCarty, Byron Hansford alleged that the board "voted to hire Pete Fitzpatrick as the new jail administrator" in a closed session conducted during the May 3 special meeting. As a means of remedying the alleged violation, Mr. Hansford proposed that the board "vote again to hire the new administrator" at a future public meeting. On May 18, board attorney Nelson T. Sparks denied Mr. Hansford's allegation. Although he acknowledged that, pursuant to "KRS 61.810(1) and KRS 61.815," 2 the board conducted a closed session "to discuss the applications of the various candidates for the position of administrator, " during the May 3 meeting, Mr. Sparks denied that "final action was taken at that meeting. . . ."
On appeal, Mr. Hansford maintains that, after interviewing each of the candidates in open session at the May 3 meeting, the board:
immediately went into executive or closed session and conducted three separate votes. The first vote eliminated Byron Hansford, the second vote eliminated Randy Bowen, and a third vote was held between Franklin D. "Pete" Fitzpatrick and Rodney Patrick. That vote resulted in 6 votes for Mr. Fitzpatrick, 3 votes for Mr. Patrick, and one member abstaining.
Based on a statement attributed to board member Mike Crum at a June 28 regular meeting 3 and to an article that appeared in the Mountain Citizen , 4 he maintains that the board took final action in closed session at the May 3 meeting.
In supplemental correspondence directed to this office, Mr. Sparks explained:
The board met on May 3 to consider the applicants and to interview the four candidates. It is significant to note that the agenda for that meeting, a copy of which is attached, showed that it was a special meeting and the only agenda item was to interview applicants and not to hire anyone to fill the position. 5 Upon completion of the interviews the board went into closed session pursuant to KRS 61.810 to discuss the applicants. During the closed session, the members discussed the qualifications of the various candidates and the chairman took an informal vote of the board as to their preferences. None of the members was in favor of hiring Mr. Hansford. The chairman then took a second informal vote as to the board's preference among the other three applicants. Only two members were in favor of hiring Randy Bowen. The chairman then took a third informal vote as to the board's preference between Pete Fitzpatrick and Rodney Patrick and a majority was in favor of hiring Pete Fitzpatrick. The meeting then adjourned. No formal vote was taken, no one was hired and no final action was taken on any of the four candidates.
Mr. Sparks conceded that "after some people learned of the informal votes . . ., they assumed that Pete Fitzpatrick had been hired, " but that "subsequent events," including two board meetings at which unsuccessful votes were taken to hire Mr. Fitzpatrick, "proved they were wrong." It was not until the June 28 meeting that a motion was made to hire Mr. Fitzpatrick. That motion "passed 5-3, with one member abstaining and one member leaving the meeting without voting." This final vote was conducted in open session. 6
The parties agree that a series of votes were conducted in closed session at the board's May 3 special meeting. They disagree as to the legal significance of those votes. Mr. Hansford maintains that the votes constituted final action of the public agency. The board maintains that they were informal votes not intended to constitute final action but to gauge the preferences of the board members. While the circumstances surrounding Mr. Fitzpatrick's appointment are confusing, we find that events occurring after that meeting support the board's position that the May 3 votes were "informal" or "straw votes." We are reluctant to endorse any discussion of public business that does not occur in a public forum, that detracts from the public debate, or that facilitates "the crystallization of secret decisions to a point just short of ceremonial acceptance." Mark Levy v. Board of Education of Cape Henlopen School District, et al., Ch. Ct., C.A., No. 1447, Chandler, V.C. (Oct. 1, 1990). Guided by OAG 82-341, we nevertheless conclude that the record on appeal does not support the claimed violation of the Open Meetings Act.
In OAG 82-341, the Attorney General addressed the question whether the members of a public agency could conduct a "straw vote, " to reach a consensus or otherwise, if it was understood "that any final count must be taken in public in accordance with open meetings laws for the public record." This office succinctly opined:
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. KRS 61.835 provides:
As to the question of whether an agency holding a properly conducted closed session may take a straw vote by secret ballot for the purpose of reaching a general consensus among the members, we see no statutory violation in such a procedure. The purpose of a closed session is to allow free discussion by the members and there are no statutory restrictions on how the discussion may be conducted. A straw vote may be taken whereby each member signifies, either openly or secretly, how he is inclined to vote on the subject. This may be followed by more discussion. But if final action is finally taken, it must be taken in open session and the vote of each member, or his abstention, must be recorded in the minutes.
OAG 82-341, p. 1. In the appeal before us, the board members were not bound by the preferences they expressed on May 3 and their "informal" or "straw" vote had no legal effect. Elery v. Commonwealth, 368 S.W.3d 78, 90 (Ky. 2012) (recognizing, in a different factual context, that a jury's straw vote "is not legally significant," and citing Blueford v. Arkansas, 132 S. Ct. 2044, 2050-53 (2012) for the proposition that "a jury's tentative vote during deliberations . . . was not binding").
A review of authorities from other jurisdictions confirms our position. In Morning Call, Inc. v. Board of School Directors, 164 Pa. Cmwlth. 263, 270-71, 642 A.2d 619 (1994), a Pennsylvania court declared:
Just because a "vote" is taken in executive session does not mean that it is an "official action" as defined under [Pennsylvania's] Sunshine Act. To be a vote constituting official action . . . it must be on a matter that commits the agency to a course of conduct. When an agency eliminates candidates in executive session through a "straw vote, " that vote is not official action contemplated by the Sunshine Act that must take place in public, but is part of that discussion and deliberation authorized to be conducted at a private executive session, or, as the trial court found, "really nothing more than a further rating and ranking of these non-finalists." Here, the vote required to be taken publicly as envisioned by . . . the Sunshine Act is the one that commits the [agency] to hire a specific person.
Similarly, in Board of Trustees v. Cox Enterprises, Inc., 679 S.W.2d 86, 89 (Tex. App. 1984), reversed in part on other grounds, 706 S.W.2d 956 (Tex. 1986), a Texas court recognized that the state's open meetings act "does not prohibit members in an executive session from expressing their opinions on an issue or announcing how they expect to vote on the issue in the open meeting, so long as the actual vote or decision is made in the open session. " When, however, a public agency votes in closed session "without benefit of public discussion or resolution," the agency's conduct "flies in the face of the requirements for open government in pursuit of the 'cherished ideal' of 'government of the people.'" Polillo v. Deane, 74 N.J. 562, 571, 379 A.2d 211 (1977); accord, Miller v. Tacoma, 138 Wash. 2d 318, 979 P.2d 429 (1999) (series of secret ballots conducted by city council in closed session to reach a consensus on candidate for appointment to planning commission violated state's open public meetings act where council, upon returning to open session, directed city manager to present resolution at its next meeting to appoint consensus candidate selected in closed session) .
We find that because the "vote" conducted at the May 3 special meeting did not bind the board members, or commit the board to a course of action, suggesting at most how each member was "inclined to vote," 7 and a final vote was conducted in public session on June 28 indicating how each member actually voted, the Big Sandy Regional Jail Authority did not violate the Open Meetings Act when its members expressed their preference as to the candidates for jail administrator by informal vote. Our conclusion is not altered by the fact that some people "who learned of the vote . . . assumed that Pete Fitzpatrick had been hired. " In this case, the public's perception, including that of the candidate ultimately selected, was at odds with the course of events culminating in an open, public vote.
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:
Byron HansfordScotty McCartyNelson T. Sparks
Footnotes
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