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 actions of the London City Council prior to its August 5, 2013, meeting violated the Kentucky Open Meetings Act. By written complaint directed to Mayor Troy Rudder on August 6, 2013, Managing Editor of The Sentinel Echo Carrie Dillard alleged that during the August 5 meeting "you stated that council members and yourself had had prior discussions 'individually and as a group' regarding the establishment of a city tourism and convention commission. Later, when questioned by a reporter about this statement, you stated you exchanged emails with council members regarding this same subject." Quoting the prefatory language of KRS 61.810(1), providing that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which action is taken by the agency, shall be public meetings, open to the public at all times," with limited exceptions codified at KRS 61.810(1)(a)-(m), Ms. Dillard claimed that "this prior discussion" violated the Open Meetings Act. To remedy this alleged violation, Ms. Dillard asked "for any and all documents relating to the prior discussion about the city tourism and convention commission (including, but not limited to, emails) ; acknowledgement of the violation; and a written affirmation that the violation won't occur again." By letter dated August 10, 2013, Ms. Dillard initiated this appeal because the Sentinel Echo "feels the London City Council violated KRS 61.810(1) by holding prior discussions about city's business outside of a public meeting in an effort to avoid the Open Meetings Act. " In support of its position, Ms. Dillard asserted that during the meeting Mayor Rudder stated to a reporter that: "'We've talked as individuals and as a group for some time now about setting up our own tourism commission.'" According to Ms. Dillard, the Mayor "did not respond in writing, or by any other means of communication" within the required three-day period. The record on appeal validates neither of the alleged violations.
Upon receiving notification of Ms. Dillard's appeal, City Attorney Larry G. Bryson responded on behalf of the City Council. Mr. Bryson first refuted the claim that no written response was provided within the statutory time frame of three business days per KRS 61.846(1), advising that he responded "in fact within two days." Ms. Dillard's August 5 complaint was actually "hand delivered by a Sentinel Echo employee to Mayor Rudder on August 7," Mr. Bryson explained, "and I responded to both the alleged Open Meetings violation and the Open Records request [dated August 6 and the subject of Log No. 201300288], on August 8." He attached copies of both August 8 responses. Accordingly, if anything, Ms. Dillard's appeal was arguably premature under KRS 61.846(1). See 04-OMD-199 (applying computation of time provision codified at KRS 446.030(1) in determining that response to complaint on fourth business day was untimely under KRS 61.846(1) and implicitly recognizing that a response issued on the third business day after the complaint was received would have been timely); 11-OMD-136 (noting that Attorney General has applied the general rule of computation found at KRS 446.030(1) in determining whether a public agency complied with KRS 61.846(1) under the Open Meetings Act, which, in relevant part (three business days for a written response) , mirrors KRS 61.880(1), its counterpart under the Open Records Act). See also 96-ORD-207; 10-ORD-102. Even if the presiding officer had actually received the complaint on August 6, rather than August 7 (which Ms. Dillard has not refuted) , the City Council's August 8 response was timely within the meaning of that statute as long as it was mailed on August 9, the third business day after it was received. The complaint is without merit from a procedural standpoint.
In his August 8 response to Ms. Dillard's August 5 complaint, Mr. Bryson advised that Mayor Rudder "does not recall making the statement you attribute to him from the Council meeting of August 5. As I recall, you were not present at the meeting." In the event that Mayor Rudder misspoke, Mr. Bryson explained, he "has assured me that he did not meet 'as a group' with the Council outside of the City Council meetings of which the Sentinel Echo was notified. " Rather, Mr. Bryson continued, "as I recall the Mayor's statements at the last Council meeting, he indicated more than once that the Council had not met as a group to discuss this prior to the Council meeting." Insofar as Ms. Dillard was "attempting to suggest a series of meetings in which decisions were made" that violated the Open Meetings Act, Mr. Bryson advised that Mayor Rudder "has assured me that did not occur either. Decisions are made at the public City Council meetings."
Reiterating that business of the London City Council is "conducted in open, public meetings" and "[n]o decisions are made by the Council outside of the public meetings[,]" Mr. Bryson explained that a copy of "the document that was emailed to Council members" had been provided in response to Ms. Dillard's Open Records request. With regard to "documents relating to 'prior discussions' about the city tourism and convention [commission]," Mr. Bryson advised that on behalf of the City Council he responded "with all of the information that I know to exist. The 'Statement' that the Mayor circulated to the Council" was also given to reporters of both newspapers, he advised, "and was simply to inform the Council and the public of his position."
On appeal Mr. Bryson elaborated upon the agency's position, confirming that the Mayor "did send a statement to the Council members that he intended [to] and did, in fact, release to the news media, the Laurel Tourism Commission and others. The purpose of this email was to provide a copy of the release to the Council members." Mr. Bryson emphasized that the e-mail "was for information purposes only and to inform the Council of the Mayor's position." A copy of the statement was provided to Ms. Dillard in the agency's response. Mr. Bryson further acknowledged that "minutes of prior meetings and the proposed agenda are also provided to the Council members prior to the meeting, on a regular basis by email. " However, the City Council does not believe that providing this information to Council members is a violation of the Act because this correspondence by the Mayor "could hardly be considered a 'meeting' as defined in KRS 61.805(1), because there was no 'gathering' that was 'held' as required for a 'meeting' as those terms are used in KRS 61.805(1)."
In an "abundance of caution," and in response to Ms. Dillard's request, the City Council provided the news release as well as four (4) other e-mails, Mr. Bryson explained, "two (2) of which were not to Council members but concerned the Laurel County Touris[t] Commission. One of the four emails was to all Council members," but consisted of "the Terms of the Laurel County Tourist Commission (with their names and the expiration day of their terms), a copy of KRS 91A.350, and part of the By-Laws of the Laurel County Tourist Commission." The remaining e-mail thread was between Mayor Rudder and Jason Handy, November 6 and 9, 2012, "and included the same information that was later provided to all Council members" pertaining to when the Commissioners' terms expired. A copy of the City Council's August 8 response, including the e-mails referenced above, was included with its August 19 response to Ms. Dillard's Open Meetings Appeal.
In closing, Mr. Bryson asserted that "[a]llegations of violations of the Open Meetings law should be based on some evidence, not feelings." No evidence has been provided that would establish a violation of the Open Meetings Act, he concluded, "because it did not occur. No meeting occurred; no 'discussions' occurred; and no decisions were made." He noted that "the vote of the Council was not unanimous on either occasion. There were lengthy discussions involving the public and the Council at the City Council meeting." In the absence of any evidence that a quorum of the members of the City Council was present at a single meeting from which the public was excluded, or that the members engaged in a series of less than quorum meetings for the purpose of avoiding the requirements of the Act, this office has no basis upon which to conclude that the City Council violated the Open Meetings Act. Consistent with KRS 61.810(1), application of the requirements of the Act "is conditioned upon proof that a meeting occurred, that the meeting was attended by a quorum of the members of the public agency, and that public business was discussed or action was taken." 00-OMD-200, p. 6 (emphasis added).
Ms. Dillard's complaint is apparently premised upon the mistaken belief that a meeting occurs within the meaning of KRS 61.810(1) anytime that members of a public agency discuss public business. However, KRS 61.810(1) expressly provides 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 [certain exceptions codified at (1)(a)-(m)]." Addressing the potential for subversion of the intent of the Act which exists with meetings involving less than a quorum of the members of a public agency, KRS 61.810(2) provides:
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 subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. 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.
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 therefore 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 which are held for the purpose of circumventing the requirements of the Act.
The Court in Yeoman 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 board 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. See 00-OMD-171 (City Manager contacting city commissioners to confirm they did not want him to place an item on the agenda was not a discussion of "public business" ); 13-OMD-086 ("Since a mere discussion of what items should appear on the meeting agenda is not a substantive discussion of the issues, it was not a discussion of public business" and thus did not trigger the requirements of KRS 61.810(1), but if a quorum of the members of the agency "discussed the budget in a telephonic 'series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute[d] at least a quorum of the members of the public agency, ' then KRS 61.810(2) would have been violated . . ., if the . . . meetings were 'held for the purpose of avoiding the requirements' of KRS 61.810(1)).).
The record on appeal is devoid of evidence that a quorum of the members of the City Council was present at a single meeting from which the public was excluded, or that the members engaged in a series of less than quorum discussions of public business where the members attending collectively constituted at least a quorum of the members of the agency. While this office has no reason to question the veracity of Ms. Dillard or the unnamed reporter to whom the Mayor allegedly made the verbal statement upon which the Sentinel Echo relied, an unsubstantiated claim to that effect simply does not constitute proof that a violation occurred, particularly in light of the Mayor's differing recollection. See 12-OMD-067 (given conflicting evidentiary record concerning discussions held outside of the public forum this office was unable to determine whether the agency had violated KRS 61.810(2) prior to its meeting). Perhaps more importantly, even assuming the accuracy of the quotation attributed to the Mayor, the fact that "prior discussions" may have been held "individually and as a group," standing alone, does not establish that a violation of the Act was committed; nor do the responsive e-mails, a review of which, in short, confirmed the agency's description as to both content and the identity of the parties corresponding. Only two e-mails were directed to all members of the City Council -- one containing the statement/press release by the Mayor, and one consisting of the terms for the members of the London-Laurel County Tourist Commission, KRS 91A.350, and part of the By-laws of the Commission. Neither contains any substantive discussion and the purpose of both was to "inform" or educate the members of the City Council, which is entirely permissible under KRS 61.810(2). The remaining e-mails either did not involve any member of the Council or involved less than a quorum (one). See 12-OMD-145 (an isolated discussion by a single board member with the superintendent would not, by itself, be subject to the Act).
In 93-OMD-63, the Attorney General determined that a gathering of legislative leaders held for the purpose of discussing a health care reform proposal did not constitute a violation of the Open Meetings Act. At page 6 of the decision, the Attorney General observed:
Many of the elements of a "meeting" are present in the situation under discussion. The [announcement] indicated that there would be a gathering constituting an informational session. Public business was involved as the matter to be discussed was the health care reform proposal, the matter then pending before the General Assembly.
However, as indicated by KRS 61.810(1), one of the elements necessary to constitute a public meeting is the presence of a quorum. [The presiding officer] has specifically stated that a quorum was not present and nobody has . . . refuted that statement. Thus, if a quorum was not present the meeting in question was not a public meeting under the Open Meetings Act.
This office also rejected the complainant's alternative claim that the gathering violated KRS 61.810(2), relating to meetings of less than a quorum, reasoning:
Note that KRS 61.810(2) begins with the phrase "any series of less than quorum meetings." Thus to utilize this exception it must be shown that the public agency is meeting with less than a quorum over a series of meetings to avoid the application of the provisions relating to open and public meetings. In the situation relative to this appeal there has only been one meeting. KRS 61.810(2) is not applicable here.
93-OMD-63, p. 7. The record on appeal does not establish that a single "meeting" of a quorum of the members of the City Council at which any public business was discussed or at which any action was taken occurred nor does it establish that a series of less than quorum meetings occurred; accordingly, KRS 61.810(2) is not implicated. See 13-OMD-067 ("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 93-OMD-20, this office determined that no violation of the Open Meetings Act occurred when a public official solicited comments and suggestions from other officials concerning a proposed ordinance, but "no final decisions or commitments were made by anyone . . . relative to the ordinance prior to its consideration by the [public agency] at its [scheduled] meeting . . . ." 93-OMD-20, p. 4. The Attorney General concluded:
We do not believe that the Open Meetings Act prohibits all contacts by and among the members of a public agency outside of an open and public meeting. When, as here, a draft of an ordinance was being prepared for discussion at an open and public meeting and the person preparing the draft merely sought comments and suggestions from the individual [agency] members relative to the terms and provisions of that ordinance, there is no violation of the Open Meetings Act.
Id.; see 00-OMD-200, p. 6 (copy enclosed)("In the absence of a quorum at a single meeting, or collectively at a series of meetings, 'the meeting in question was not a public meeting under the Open Meetings Act' "); 02-OMD-107 (absence of proof in the record on appeal that a single secret meeting, or series of less than quorum meetings, occurred precluded resolution of Open Meetings Appeal in favor of appellant). See 12-OMD-177.
Based upon the foregoing, the Attorney General concludes that no violation of the Open Meetings Act occurred. See 04-OMD-073; 05-OMD-164; 12-OMD-177. London is a city of the fourth class and its City Council is therefore required to have "[n]ot less than six (6) nor more than twelve (12) members" per KRS 83A.030(1). According to the City of London's website, www.cityoflondonky.org/citycouncil.html, the London City Council is comprised of six members and, therefore, at least four members of that agency must be present for aquorum to exist. See KRS 83A.060(6) ("Unless otherwise provided by statute, a majority of a legislative body shall constitute a quorum and a vote of a majority of a quorum shall be sufficient to take action"); 4 McQuillin, Mun. Corp. (3rd Ed.) § 1327. "Because there was no quorum, there was no meeting." 94-OMD-63, p. 3.
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:
Carrie DillardTroy RudderLarry G. Bryson