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, in the absence of proof that a quorum of the newly sworn members of the Jeffersonville City Commission discussed public business after the commission's November 26, 2012, meeting was adjourned, the record on appeal does not support Leonard Wilson's allegation of an illegal meeting. The record on appeal does, however, support Mr. Wilson's claim that the commission did not respond to his complaint within three business days of receipt in contravention of KRS 61.846(1) .
In his November 29, 2012, complaint, Mr. Wilson alleged that following adjournment of the commission's November 26 meeting, the four newly elected commissioners were sworn in and remained in the meeting room "for at least 20 to 25 minutes. " It was his position that the commission members "cannot hang around for that much time because that [constitutes] a gathering of a quorum. " As a means of remedying the alleged violation, Mr. Wilson proposed that "the council [sic] leave the meeting place a few minutes after adjourning."
By letter dated December 6, 2012, City Attorney Leah Hawkins denied Mr. Wilson's allegations. She acknowledged that "members of the Jeffersonville Commission may briefly visit with the public attending the meeting, or members of the press after the conclusion of the meeting," but maintained that "there was no violation of the Open Meetings Act" after the November 26 meeting. In support, Ms. Hawkins noted that Mayor Steven Barnes "exited the building approximately 15 minutes after the conclusion of the meeting and observed only two commissioners remaining on the premises." Responding to Ms. Hawkins' letter, Mr. Wilson asserted that he was one of two people who attended the meeting and that the commissioners did not speak to him or the other attendee. He suggested that the commission "should have a log to log the public in."
Regardless of whether the commissioners spoke to him or the other attendee, or remained in the meeting room for fifteen minutes or twenty-five minutes, Mr. Wilson's complaint did not state an open meetings violation, other than the procedural violation discussed below, because it was not supported by proof that the commissioners discussed public business. His suggestion that the commission utilize a sign-in log to identify members of the public in attendance creates more potential problems than it solves insofar as KRS 61.840 expressly provides that "[n]o conditions other than those necessary for the maintenance of order shall apply . . . [and n]o person may be required to identify himself in order to attend any . . . meeting." This provision has been interpreted to prohibit mandatory sign-in sheets. See 98-OMD-44 and 00-OMD-63; compare 09-OMD-23. Moreover, the presence of a voluntary sign-in sheet would do nothing to confirm or refute post-adjournment discussions between commissioners and attendees.
In 12-OMD-048, this office addressed a similar issue involving allegations of post-adjournment meetings of a quorum of an agency's members. There, however, the complaint specifically alleged that the agency members discussed the agency's financial report and recent audit after the meeting. The agency flatly denied these allegations. At page 4 of that decision, we observed:
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.
In the appeal before us, Mr. Wilson does not allege that a quorum of the commission members discussed public business after the November 26 meeting, but instead alleges that they committed a violation by remaining in the room. "The mere fact that a quorum of the 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 [Open Meetings] Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998).
In Yeoman , above, Kentucky's Supreme Court declared 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. "Public business," the Court observed, "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. Assuming, for the sake of argument, that a quorum of the members of the Jeffersonville City Commission remained in the meeting room after the meeting adjourned, the commissioners did not commit a violation of the Open Meetings Act unless they engaged in a discussion of public business or took action. Mr. Wilson makes no such claim. We therefore find that the Commission did not violate KRS 61.810(1).
The record on appeal supports Mr. Wilson's uncontested claim that the commission did not respond to his November 29 complaint in a timely fashion. The commission's response is dated December 6 and no argument is advanced that the complaint was delayed in the mail. KRS 61.846(1) requires public agencies to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and [to] notify in writing the person making the complaint, within the three (3) day period, of its decision." The commission's written response was issued two days after the three day statutory response time. We therefore find that the commission violated KRS 61.846(1).
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:
Leonard WilsonSteven BarnesLeah Hawkins