Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Bardstown City Council violated the notice provisions of the Open Meetings Act when a quorum of its members were present at a special meeting of the City Council Finance Committee held on September 10, 2012. For the reasons that follow, we find that the City Council did not violate the Act.
By letter dated September 17, 2012, Kevin Brumley submitted a written complaint to Bardstown Mayor William S. Sheckles, in which he alleged that at a September 10, 2012, meeting of the Finance Committee, a quorum of the City Council's membership was present and discussed public business. He asserted that this was tantamount to an unannounced special meeting of the City Council. Mr. Brumley did not dispute that the notice requirements of KRS 61.823 were met with respect to the Finance Committee meeting, but he argued that there should have also been public notice of a special meeting of the City Council. As a means of remedying the alleged violations, Mr. Brumley proposed that the Mayor declare null and void the City Council meeting that he alleged to have occurred; make a public apology through local media; and require city officials to be educated on the requirements of the Open Meetings Act.
In a reply dated September 20, 2012, City Attorney Thomas A. Donan detailed how the Finance Committee meeting had complied with KRS 61.823 and further noted: "The meeting was open to the public. No final action was taken at the Committee meeting. The matters discussed were on the agenda for the meeting. The media was present and the meeting was televised by WBRT." Mr. Brumley initiated this appeal with a letter dated October 4, 2012.
The Bardstown City Council's Finance Committee consists of the Mayor, the Chief Financial Officer, and three (3) of the six (6) members of the City Council. Mr. Brumley alleges, and the City does not dispute, that two (2) additional Council members were present at the September 10 meeting of the Finance Committee, and the remaining member was listening via speakerphone. Nor is there any dispute that this constituted at least a quorum of the Council membership.
In a response to Mr. Brumley's appeal dated October 9, 2012, the City Attorney argues as follows:
If you follow Mr. Brumley's logic, City Council members who are not on the Finance Committee would have no right to attend a public meeting even though it was properly advertised. Further, they would have no right to make suggestions, express opinions or discuss policy if recognized by the chair. ?
?
? Mr. Brumley simply wants to convert a properly advertised and conducted Finance Committee Meeting to a Special Meeting of the City Council. There is nothing to keep Non-Finance Committee members from attending the meeting or listening to the meeting. There is no prohibition against non-committee members of the City Council or members of the public from expressing their opinions or expressing policy considerations if they are recognized by the chair of the committee. In his September 17, 2012 Complaint, Mr. Brumley attempts to characterize this meeting as an official vote on the 2012 Property Tax Rates. Although Finance Committee Members and two other City Council members who were not on the Finance Committee commented on this matter and separately expressed their opinion, the Mayor did not question each member individually. Each Finance Committee Member and the Mayor expressed their opinion about this and other finance related matters without interrupting each other. Subsequently, the two City Council Members in attendance, who were not members of the Finance Committee, also expressed their opinion concerning the current fiscal year tax rate and the previous fiscal year's tax rate as well as the rate upon which the budget for the City was based for the current fiscal year. All of this took place in a public meeting with the media present.
(Emphasis omitted.)
Under the circumstances, we do not believe that a violation of the Open Meetings Act occurred. "The basic policy of [the Act] is that the formation of public policy is public business and shall not be conducted in secret." KRS 61.800. The Finance Committee undisputedly complied with the public notice requirements of KRS 61.823 for a special meeting. Discussions of public business by the Finance Committee were limited to the items on its agenda, and the Committee discussed no topics outside its charged responsibilities. Nothing in the Open Meetings Act categorically prohibits members of a public agency from attending a public meeting of a committee to which they do not belong. 1 While it is possible to imagine a scenario where members might use such attendance as a subterfuge to evade the notice requirements of KRS 61.823, there is no evidence of such intent in this case.
As the Supreme Court of Kentucky observed in
Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459, 474 (Ky. 1998):
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 violation of the Act.
For a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency. 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 board [here the City Council] has the option to take action. Taking action is defined by the Act as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body." KRS § 61.805(3). The 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 meeting requirement of the Act. KRS § 61.810(2).
Although public business was discussed at the Finance Committee meeting, it was not business that only the City Council was competent to discuss, but rather was the proper business of the Committee. If the Finance Committee was discussing solely issues within its competence during a lawfully noticed public meeting, we do not see the harm to the purposes of the Open Meetings Act from the presence and public participation of other City Council members. 2 No public policy was made in private, and no functions exclusive to the full City Council were exercised outside a properly noticed Council meeting.
Although not specifically alleged in his September 17 complaint, there is a contention in Mr. Brumley's October 4 letter that "Bardstown City Council business [was] discussed" at the September 10 meeting when the Mayor "states 'basically what we'll do tomorrow,' referring to future Bardstown City Council business to be heard on 9-11-12" (emphasis omitted), and mentioning the fact that the property tax rate was to be voted on at the "public hearing" scheduled for the next day's City Council meeting. Upon review of the audio recording provided by Mr. Brumley with his appeal, this appears to have been a unilateral statement of fact made by the Mayor, not a discussion of public business among members of the City Council. We find no violation of the Open Meetings Act by the City Council in this instance.
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:
Kevin BrumleyHon. William S. ShecklesThomas A. Donan, Esq.
Footnotes
Footnotes
1 Similarly, a quorum of the City Council membership might theoretically attend a county fiscal court meeting and state their individual opinions on county business, but this alone would not constitute a special meeting of the City Council subject to KRS 61.823.
2 While Mr. Brumley argues in a letter dated October 16, 2012, that the other Council members' presence at the Committee meeting would render the Committee's report to the Council unnecessary because the full Council already knew the outcome, we note that a similar result would obtain if the other Council members watched the Committee meeting on television.