Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Murray State University Board of Regents violated the Kentucky Open Meetings Act when a quorum of the members discussed public business during an "informal social gathering" held on the evening of March 14, 2013, at the home of Regent Sharon Green following a special meeting of the Board's Finance Committee. "Because the record on appeal supports a finding that a quorum of the Board was present during the March 14 meeting and that public business was discussed," as in 13-OMD-057 ( In re : James L. Deckard/Murray State University Board of Regents, issued April 17, 2013) the Attorney General finds "that the Board violated KRS 61.810(1) in failing to comply with public notice requirements codified at KRS 61.823 regardless of whether a vote of any kind was taken or there was any nexus between the improper discussion and the final action taken on March 15. The Board's failure to record minutes of that meeting also violated KRS 61.835." 13-OMD-057, p. 2.
By letter directed to Board Chairperson Dr. Constantine W. Curris on March 27, 2013, Ann C. Beck alleged that since it was not a regularly scheduled meeting of the Board, "the social event should have been noticed and conducted under Kentucky Revised Statute 61.823 as a special meeting. " In support of her argument, Ms. Beck relied upon excerpts from WKMS reporter Chad Lampe's March 16, 2013, interview with Dr. Curris ((http://wkms.org/post/curris-msu-board-members-casually-discussed-busine…), including his acknowledgement that there "was discussion on the impact oftuition, there was even discussion of the recommendation that WKMS be studied to be sold. There was even discussion of the upcoming meeting the next day. . . ." To remedy the alleged violations of KRS 61.823(3) and (4), she proposed that Dr. Curris, in his capacity as Board Chair, publicly disclose the names of all Regents in attendance, that each Regent provide "an affidavit describing in detail the topics relevant to the governance of [MSU] that were mentioned or discussed," that "all votes taken and recorded at the March 15, 2013 regular meeting of the Board of Regents be vacated as null and void, " that "all votes taken and recorded at the March 15, 2013 meetings of committees for which a quorum was present on [sic] during the social event of March 14, 2013 be vacated as null and void, " and that "all matters mentioned or discussed at the March 14, 2013 social event be discussed publicly at the next regularly scheduled Board meeting."
In a timely written response, MSU General Counsel John P. Rall responded on behalf of the Board to Ms. Beck's complaint regarding the "informal social gathering" held on the evening of March 14. Regardless of any "Open Meetings considerations," Mr. Rall advised that Dr. Curris would be glad to publicly address the content of the conversations held that evening and identify the Regents in attendance. "All other considerations aside," Dr. Rall advised that both topics discussed (impact of recommendations by the Finance Committee on tuition and WKMS) were addressed publicly during the special meeting on March 14 "and were discussed in detail at the committee's regular public meeting on March 15." Because the Board adopted the Committee's recommendation to conduct additional review of the impact of the Committee's recommendations on both tuition and WKMS, Mr. Rall observed, it will have the opportunity to consider both matters at future public meetings. The decision to solicit a motion to extend the President's contract, he noted, "was not the result of any collective decision made at the March 14th social." Rather, a Regent who did not attend the gathering made the motion. According to Mr. Rall, "there was no discussion on the 14th of how any vote should or would be cast, no attempt to persuade anyone to change a vote, and no type of straw vote. " Consequently, the Board declined to adopt either of the final two remedies proposed. 1 Ms. Beck initiated this appeal shortly thereafter.
Upon receiving notification of Ms. Beck's appeal from this office, Mr. Rall supplemented his original response on behalf of the Board, correctly asserting that the instant appeal involves the same "event" addressed in 13-OMD-057. The Board incorporated the factual summary quoted on page three of that decision as well as the other "assertions of facts and arguments" therein attributed to it. Having reiterated the Board's original response to Ms. Beck's complaint, which Mr. Rall correctly noted was "entirely proper under KRS 61.846(1)," he acknowledged the Attorney General's determination "that the event of March 14 was contrary to the Act." Although it may disagree, "and reserves all arguments related thereto," the Board "has nothing to add to its position" as set forth in 13-OMD-057. Similarly, inasmuch as Ms. Beck's complaint/appeal raises the precise legal question resolved in 13-OMD-057, the reasoning of that decision is equally controlling here. Of particular significance, this office concluded:
The Attorney General is unable to resolve the admitted factual dispute surrounding the perceived causal relationship between the discussion held on March 14 and the action (vote) taken on March 15, in light of the conflicting narratives presented; however, the unrefuted evidence of record, namely the publicly available statement of the Board Chairman, establishes not only that a quorum of the Board was present on March 14 but also that public business was discussed. 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 meetings requirement of the Act." Yeoman v. Commonwealth, 983 S.W.2d 459, 474 (Ky. 1998), citing KRS 61.810. Notwithstanding the parties' differing characterizations of March 14 and perceptions of the Regents' intent or purpose in holding the meeting, and the unresolved question of whether the improper discussion actually resulted in the March 15 vote, nothing more is required to find that violations of KRS 61.810(1) and 61.835 were committed.
13-OMD-057, p. 4.
As before, MSU emphasized that its action regarding the President's contract on March 15 "did not occur as a result of the social gathering on March 14." Mr. Rall reiterated the facts upon which it relied in support of that assertion (see 13-OMD-057, pp. 3-4). 2 This office again declines to make any finding on the question of whether the vote taken during the March 15 meeting actually resulted from the improper discussion of public business held on March 14; however, this office also stands by its decision that violations of KRS 61.810(1), 61.823, and 61.835 were committed "regardless of whether the March 15 motion resulted from any 'collective decision' by the Regents present on March 14." 13-OMD-057, p. 8. The requirements of the Open Meetings Act were triggered when a quorum of the members of the Board discussed public business on March 14 at Regent Sharon Green's home; "the violation of the Act . . . postulated on their failure to do so in a public forum [is] not mitigated by the fact that the members did not take action." 07-OMD-100, p. 5; 13-OMD-057, p. 8. As Mr. Rall correctly asserted, 13-OMD-057 "disposes of this appeal." Our conclusion remains unaltered by the fact that no discussion was held on March 14 "of how any vote should or would be cast, no attempt to persuade anyone to change a vote, and no type of straw vote. " Id., p. 8. A copy of 13-OMD-057 is attached hereto and incorporated by reference.
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:
Ann C. BeckDr. Constantine CurrisJohn P. Rall
Footnotes
Footnotes
1 As the Attorney General acknowledged in 13-OMD-057:
[T]his office is not empowered to declare void action taken at an illegal meeting, impose penalties for violations of the Act, or compel an agency to implement the remedial measures proposed." 08-OMD-005, p. 9. Nor is the Attorney General able to conclusively resolve factual disputes when presented with conflicting factual narratives. See 05-OMD-096; 07-OMD-253; 08-OMD-234; 09-OMD-014; 10-OMD-214. Our holding today is not a departure from these precedents; rather, this appeal is distinguishable insofar as the relevant facts are not in dispute.
Id., p. 6.
2 Mr. Rall further asserted that Ms. Beck's appeal sought a determination regarding the March 14 "social" as her stated "concern is about all actions taken by the Board members at the meeting on March 15, 2013, in light of the possible violation of the Open Meetings Act on the previous night." With regard to any issues beyond the perceived causal relationship between the March 14 discussion of the President's contract and the March 15 vote specifically, Mr. Rall noted that similarly, there is no causal relationship "between the social and the public discussion on March 15 of issues relating to the future of WKMS (the campus radio station) and student charges, which are referenced in the radio interview." Mr. Rall also emphasized that "final resolution" of these other matters will occur in the future; nothing has been determined as of yet. In the interest of absolute clarity, this office reiterates that the Attorney General is not making any finding on this factual question; however, the "social event" was a "meeting" per KRS 61.805(1), and compliance with provisions of the Act was therefore mandatory per KRS 61.810(1), regardless of whether the discussion of public business revolved around tuition, WKMS, or/and the President's contract.