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 Lancaster City Council violated KRS 61.810(2) by conducting two less than quorum meetings, where the members attending one or more of the meetings collectively constituted a quorum, to discuss "contract negotiations with the Garrard County Water Association, Inc." with the city's special counsel. KRS 61.810(2) provides that:
Any 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 [KRS 61.810(1)], 1 shall be subject to the requirements of [KRS 61.810(1)]. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
While we acknowledge our inability to discern the subjective intent of the participants in these meetings, we reject the council's argument that "[t]wo meetings does not a series make." KRS 61.810(2) defines the term "series" as "one or more meetings." Two meetings are more than one meeting, and so ad infinitum . In addition, we reject the city's alternative argument that these meetings were conducted by the council members "to educate themselves as permitted by KRS 61.810(2)." As clearly stated in 10-OMD-043, the concluding sentence of KRS 61.810(2) should not be "available as a defense to any claimed violation" of that statute lest "this narrow exception . . . swallow the express rule." 10-OMD-043, p. 8.
It is undisputed that on March 27, 2013, the city's special counsel met with council members Jeff Adams and Ronnie Baker to discuss "certain factual, procedural, and legal matters concerning the contract negotiations with the Garrard County Water Association, Inc." 2 It is further undisputed that on March 28, 2013, special counsel met with council members Bred Baierlein and Chris Davis to discuss this topic and that Mayor Brenda Powers "joined the meeting and was present for a substantial portion of the meeting." Based on these facts, Garrard Central Record publisher J. Walker Cox submitted a written complaint to Mayor Powers on April 8, 2013, in which he alleged that the council's conduct violated KRS 61.810(2). As a means of remedying the alleged violation, Mr. Cox proposed that the council admit that it improperly conducted a series of less than quorum meetings to avoid the requirements of the Open Meetings Act, provide a "public accounting" of what transpired at the meetings, and agree to comply with the requirements of the Act at all future meetings.
On behalf of the council, Mr. Talley denied that the newspaper's allegations "address all the statutory requirements." He observed:
Under KRS 61.810(2), a violation of the Open Meetings Act does not occur unless two (2) conditions are met: (1) a "series" of meetings were held; and (2) the council members "intended" to violate the Open Meetings Act. The City contends that neither of these conditions occurred.
Unable to locate a definition of the term "series" in the statute or in past open meetings decisions, Mr. Talley suggested that, in common usage, the term contemplates "several meetings . . . certainly more than two meetings . . . ." He rejected the newspaper's claim that the council members intended to circumvent the requirements of the law, asserting that they "desired to educate themselves, as permitted by KRS 61.810(2), . . . [and] should be commended, not chastised, for their keen interest and thirst for knowledge." We find neither of these arguments persuasive.
As noted above, the general mandate of the Act is codified at KRS 61.810(1) and provides:
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except [for discussion of topics identified in KRS 61.810(1)(a) through (m).]"
Recognizing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, in 1992 the General Assembly enacted KRS 61.810(2). In construing these provisions, the Kentucky Supreme Court has declared that "[t]he 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). Violation of the Open Meetings Act, insofar as it relates to "secret meetings," is thus predicated on two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken, and (2) a series of less than quorum meetings attended by members of the agency collectively constituting a quorum and held for the purpose of circumventing the requirements of the Act. Elaborating on this position, the Supreme Court further observed:
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 [agency] 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).
Id. , quoted in 09-OMD-218, p. 4, 5 (emphasis added). See also 00-OMD-63, p. 5 (holding that "KRS 61.810(2) prohibits all less than quorum meetings where the members attending one or more of the meetings collectively constitute at least a quorum, and not just those which culminate in a collective decision"). It is undisputed that the Lancaster City Council conducted two private meetings at which public business was discussed and that the council members attending these meetings collectively constituted a quorum.
We find no support in the law for the Lancaster City Council's position that the term "series" requires more than two meetings. As noted, KRS 61.810(2) defines the term as "one or more meetings." Two meetings are more than one meeting and thus sufficient to trigger the prohibition. Regardless of whether two less than quorum meetings are attended by members collectively constituting a quorum, or twenty-two less than quorum meetings are attended by members collectively constituting a quorum, "the formation of public policy is public business and shall not be conducted in secret. " KRS 61.800. If public business is discussed or action is taken at these less than quorum meetings, and they are held for the purpose of avoiding the requirements of the Act, they fall within the zone of conduct prohibited by KRS 61.810(2).
Since the enactment of KRS 61.810(2) in 1992 this office has struggled with the required showing of intent to avoid the requirements of the Act. Thus, in 94-OMD-106 we acknowledged the difficulties associated with determining the subjective intent of the participants in a series of less than quorum meetings. Nevertheless, we concluded that KRS 61.810(2) "represented an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act. " See also 98-OMD-18; 00-OMD-63; 01-OMD-110; 05-OMD-086; 07-OMD-041; 09-OMD-014; 10-OMD-015.
We have not struggled with that portion of the statute permitting a series of less than quorum meetings where the members attending one or more of the meetings collectively constitute at least a quorum of the agency members as long as the purpose of the meeting is "to educate the members on specific issues." Thus, at page 8 at 10-OMD-043 we observed:
Although it is unclear why this language was included in the 1992 amendment to the Open Meetings Act that resulted in the enactment of KRS 61.810(2), it is contrary to the letter of the Open Meetings Act to suggest that the language is available as a defense to any claimed violation of KRS 61.810(2). If it were otherwise, this narrow exception would swallow the express rule. "The formation of public policy, " the General Assembly declares in the statement of legislative policy codified at KRS 61.800, "is public business and shall not be conducted in secret. " While [a fiscal court] may enjoy the right to a nonpublic education on general [matters] affecting all county governments "outside the eye of the public," it does not enjoy the right to formulate public policy directly affecting [its county] "outside the eye of the public" in one on one meetings or otherwise. Accord, 05-OMD-136 (recognizing that a quorum of the members of a public agency may attend a professional event, such as a conference or convention conducted by a separate entity, for educational purposes, but the agency members "attending such a convention or conference are not authorized to take action affecting [the agency they represent] nor are they permitted to discuss matters directly affecting their [agency]);" see also, OAG 78-634; 01-OMD-30; 05-OMD-164; 08-OMD-234.
This analysis applies with equal force to a municipal government like the Lancaster City Council. Here, as in 10-OMD-043, discussion of "factual, procedural, and legal matters concerning the contract negotiations with the Garrard County Water Association, Inc." that occurred on March 27 and March 28 "could have been, and more importantly, should have been conducted in a public meeting." 10-OMD-043, p. 9. The Lancaster City Council acknowledges that these meetings occurred and that the members attending collectively constituted a quorum. Proof of an improper purpose might be inferred from Councilman Adams' statement that by "split[ting] meetings . . . we didn't break any rules." That statement might, however, also be construed to suggest an attempt to comply with the law, albeit a misinterpretation of the law. In either case, the meetings cannot properly be characterized as purposed to educate the members on specific issues. Acknowledging once again that there is no empirical means by which this office can determine the council members' intentions, we find that their actions otherwise fell within the zone of conduct prohibited by KRS 61.810(2).
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:
J. Walter CoxBenda PowersDamon R. TalleyMary E. Wesley
Footnotes
Footnotes
1 KRS 61.810(1) states that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times except for [discussion of topics identified in KRS 61.810(1)(a) through (m).]"
2 Damon R. Talley's April 12, 2013, response to J. Walker Cox's April 8, 2013, open meetings complaint.