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 Shelbyville City Council violated KRS 61.810(1) or (2) by conducting a secret meeting or meetings of a quorum of its members, or a series of less than quorum meetings where the members attending one or more of the meetings collectively constituted a quorum, to discuss and take action on a recommendation made by Kentuckians for the Commonwealth that the council enact a city fairness ordinance. Conflicting statements in the record on appeal, and the absence of any evidence supporting the complainant's allegations, preclude us from finding that the council violated KRS 61.810(1) or (2).
On February 3, 2014, Leslie McBride submitted a written complaint to Mayor Tom Hardesty in which she alleged that the Shelbyville City Council violated the Open Meetings Act "by discussing this ordinance, and making a final determination to take no action on it, in private." Based on the Mayor's announcement at the December 5, 2013, council meeting, that "after much consideration neither he nor the council plan to take any action on the proposal made by the Kentuckians for the Commonwealth," 1 Ms. McBride inferred that "the only way this could have been accomplished is by discussing the ordinance, and making a final determination to take no action on it, in private." She offered no evidence supporting this inference. As a means of remedying the alleged violation(s), she proposed that the council "discuss[] the proposed ordinance in public and take[] a public vote on it."
In a timely written response, Shelbyville City Attorney Steven C. Gregory responded to Ms. McBride's open meetings complaint on behalf of Mayor Hardesty. 2 Mr. Gregory denied her allegations "because there have been no private meetings or communications in violation of KRS 61.810 with regards to the proposal made by the Kentuckians for the Commonwealth." In subsequent correspondence directed to this office, he explained:
Consideration was provided for the Kentuckians for the Commonwealth to be heard by the Shelbyville City Council ("Council"), who listened to the proposal for a fairness ordinance during at least two or more council meetings in 2013. At no time was an official ordinance formally placed before the Council requiring a vote, and at no time outside of a public council meeting was there any discussion amongst the members of the Council or a vote taken with regards to this matter, secret or otherwise. At the council meeting conducted on December 5, 2013, having received no communication or a draft of a proposed fairness ordinance from any member of the Council, Mayor Hardesty simply stated for the record that no further action would be taken on the proposal made by the Kentuckians for the Commonwealth. At that time, and at any council meeting prior to that date, the Council members had the opportunity to request further discussion or propose action on a fairness ordinance, but none of them moved to do so.
Thus, the council emphatically denied any violation of KRS 61.810(1) and (2).
The general mandate of the Open Meetings 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[.]
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) which 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.
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 at which public business is discussed or action taken and held for the purpose of circumventing the requirements of the Act.
Continuing, in Yeoman the Court 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. Because there is no proof in the record on appeal that a secret meeting or meetings occurred, the record does not support the claimed violations.
KRS 61.805(1) defines the term "meeting" as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." It is Ms. McBride's belief that an unpublicized meeting or meetings occurred prior to the December 5, 2013, council meeting at which a quorum of members of the council discussed Kentuckians for the Commonwealth's recommendation that the city enact a local fairness ordinance. Nevertheless, she offers no proof that such a meeting or meetings occurred. In the absence of proof, we cannot assume that a secret meeting or meetings of a quorum of the council members took place. See 98-OMD-94 (public agency whose "secret" meetings were challenged acknowledged that the meetings occurred but defended the meetings on various grounds) 3 and 00-OMD-114 (complainants personally observed the "secret" meetings in progress); compare 00-OMD-142; 00-OMD-200; 02-OMD-83 (because members of city councils who were alleged to have participated in the "secret" meeting or meetings denied that meetings occurred, and no witnesses to the alleged meetings came forward to attest to what they saw, Attorney General found insufficient evidence to support claimed violations); see also 00-OMD-147. 4
Alternatively, Ms. McBride suggests that members of the council violated KRS 61.810(2) by conducting a series of less than quorum meetings, in numbers that collectively constituted at a least a quorum, to discuss and/or act on Kentuckians for the Commonwealth's recommendation but avoid the requirements of the Open Meetings Act. Again, she offers no proof of such meetings, and again we are unable to resolve the factual issue in her favor. In 00-OMD-63, the Attorney General analyzed KRS 61.810(2) in considerable depth, observing:
KRS 61.810(2), enacted in 1992, places restrictions on the rights of public officials to engage in discussions of the public's business in any forum other than a public forum. . . . Acknowledging the difficulties associated with determining the subjective intent of the participants in a series of less than quorum meetings, this office concluded, in 94-OMD-106, that the fiscal court violated the Open Meetings Act when its members met individually or in small groups to discuss public business. At page 3 of that decision, we reasoned 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. "
00-OMD-63, p. 5. There, we held that a fiscal court violated KRS 61.810(2) based on the county judge/executive's unrefuted statement that he had conducted separate meetings with each of the members of the fiscal court to discuss a new jail site and that they had "collectively . . . agree[d]" to a specific course of action. Although we acknowledged our inability to determine whether the members of the fiscal court conducted this series of less than quorum meetings for the purpose of avoiding the requirements of the Open Meetings Act, we concluded that the fiscal court's actions otherwise fell within the prohibition described in KRS 61.810(2). Compare 00-OMD-171 and 00-OMD-200 (because members of city council who were alleged to have engaged in a series of less than quorum meetings denied that meetings occurred, and no evidence of a series of meetings was otherwise presented, Attorney General held that no violation could be established).
Mayor Hardesty's statement that "much consideration" had been given to Kentuckians for the Commonwealth's recommendation, and that no action would be taken on the recommendation, lends itself to conflicting interpretation. Nevertheless, the record before us is devoid of hard evidence supporting Ms. McBride's allegations. The council flatly denies that a quorum of its members met in secret to discuss the recommendation, or that they met in numbers less than a quorum for the same purpose to avoid the requirements of the Open Meetings Act. 5 Under these circumstances, we find that the dispute before us is more closely analogous to the open meetings disputes that gave rise to 00-OMD-142 and 02-OMD-83 as well as the open meetings disputes that give rise to 00-OMD-171 and 00-OMD-200. As noted, the council denies that secret meetings occurred, and no proof of any meeting is presented. No witnesses to the alleged meeting or meetings have presented themselves. We therefore conclude that the record on appeal does not support the claimed violations of the Open Meetings Act. Accord, 02-OMD-107; 03-OMD-088; 04-OMD-039; 12-OMD-048.
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:
Leslie McBrideTom HardestySteven C. Gregory
Footnotes
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