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 Menifee County Board of Education violated the Open Meetings Act when a quorum of its members conducted a "secret meeting" through the exchange of email on November 21, 2013. We find that the Board violated KRS 61.846(1) when its chairman and presiding officer failed to respond in writing, and within three business days, to the open meetings complaint in which this violation was alleged. We further find that although the Board's chairman attempted to draw a quorum of its members into a non-public discussion of public business, a quorum of the Board members averted violation of KRS 61.810(1) by refusing to discuss public business by email.
On November 26, 2013, Lori Franklin submitted a written complaint to Menifee County Board of Education Chairman Wendell Back in which she alleged that the Board violated the Open Meetings Act when Chairman Back "held a secret meeting with a quorum of the [Board] on November 25, 2013, via email" in the course of which he "attempted to extract a vote from the [Board] members in a certain way, on a certain issue . . . ." As a means of remedying the alleged violation, Ms. Franklin proposed that Chairman Back "make these emails public," and that the Board members obtain training in, and agree to comply with, the Open Meetings Act.
Having received no response to her complaint, Ms. Franklin initiated this appeal on December 6, 2013, providing this office with copies of the challenged email. The first email, from Chairman Back to each of the Board members, stated:
As you can see Charles 1 wants a Special Meeting to pay bills. If you all can agree to pay all claims plus the portion of the attorneys fee that is not in contention then I will call this meeting. The agenda item will read, "All claims plus the that portion of the attorneys fees". When and if I call the meeting I will fill in the amount, which should be somewhere around what we discussed last meeting. I also need to know when to set the meeting. It might not be possible on the 26th.
Chairman Back received emailed responses from two of four Board members. One member indicated that he was available and one member indicated that she was not available. Neither member commented on his demand that the Board "pay all claims plus the portion of the attorneys fee that is not in contention . . . ."
In correspondence directed to this office after Ms. Franklin initiated her appeal, Chairman Back acknowledged the use of "improper wording in [his] emails when [he] asked if [the Board members] would agree to pay all claims plus the attorney fees," but insisted that he "had no intention of violating the Open Meetings Act. " It was his position that no secret meeting occurred because all Board members were parties to the email, no Board member could see or hear the other members, and no Board member cast a vote. We find that the Board violated KRS 61.846(1) when Chairman Back failed to respond to Ms. Franklin's open meetings complaint. Further, we find that Chairman Back's attempt to draw a quorum of Board members into an email discussion of public business would have constituted a violation of KRS 61.810(1) had a quorum of the Board responded to his email by commenting on payment of claims, but that the members instead mitigated the potential violation by declining to engage in a discussion of public business in the non-public forum.
KRS 61.810(1) declares 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." In an early opinion construing the Act, the Kentucky Supreme Court determined that telephonic meetings of a quorum of the members of a public agency violated KRS 61.810(1).
Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Co., 554 S.W.2d 72 (Ky. 1977); accord, 11-OMD-018. Fundamental to this holding was the recognition that the Open Meetings Act "is designed to require government agencies to conduct the public's business in such a way that the deliberations and decisions are accomplished in an atmosphere wherein the public and the media may be present,"
Jefferson County Board of Education v. Courier-Journal and Louisville Times Co., 551 S.W.2d 25, 26 (Ky. App. 1977), and that "the formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.880. We discern no appreciable difference between non-public telephonic meetings and non-public email meetings. Regardless of whether all members of the Board were or were not parties to the email, could or could not see and hear each other, or did or did not vote, the Chairman erred when he attempted to draw the Board members into a discussion of public business, namely the payment of claims, in a non-public forum.
We decline to assign error to the responding Board members since their role was largely one of passive recipient of unsolicited email. They did not engage in a discussion of the payment of claims, but confined their responses to confirming their availability for a proposed special meeting. Such non-public discussion of scheduling matters by a quorum of an agency's members was deemed permissible in 00-OMD-142, and we apply the same analysis here. It was, therefore, the action of the Chairman that nearly compromised the Board. Whatever his intentions, the Chairman's attempt to draw a quorum of the members of the Board into a discussion of payment of claims was improper. Compare 13-OMD-142.
So, too, was the Chairman's failure to respond in writing, and within three business days, to Ms. Franklin's open meetings complaint. Chairman Back indicates that he issued clarification of his intentions to Superintendent Mitchell on November 29, and copied Ms. Franklin on that clarification, but acknowledges that he "should have written [her] a letter." Because he failed to do so, we find that the Board violated KRS 61.846(1) in the procedural disposition of Ms. Franklin's open meetings complaint. 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.
# 483
Distributed to:
Lori FranklinWendell BackDana Daughetee Fohl
Footnotes
Footnotes
1 Superintendent Charles Mitchell.
2 KRS 61.846(1) assigns the duty to respond to an open meetings complaint to the agency's presiding officer.