Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
Janice Hockensmith, former City Clerk for the City of Stamping Ground, initiated this appeal challenging the disposition of her complaint directed to Stamping Ground Mayor Billy Swartz on July 21, 2014, in his capacity as presiding officer of the Stamping Ground City Commission. She alleged, in sum, that the City Commission "knowingly and intentionally talked outside an open meeting and reached a consensus [regarding the question of whether to give City personnel a raise of 3% or 5%] in order to circumvent the" requirements of the Open Meetings Act prior to its May 22, 2014, meeting. In order to remedy the alleged violation(s) detailed in her complaint, Ms. Hockensmith proposed that the Commission set aside the 3% raise agreed upon during that meeting, and "readdress this issue and award back pay to any and all employees involved." When viewed in light of existing legal authority, the conflicting evidence presented on appeal precludes a finding in favor of either party.
In a timely written response, Mayor Swartz noted that Ms. Hockensmith's complaint was actually received in City Hall on July 24, 2014. Mayor Swartz further advised that he asked City Attorney Joseph M. Hoffman to investigate her allegations upon receipt of the complaint in order to determine whether a violation was committed and, if so, how the Commission should address the violation. By letter directed to Mayor Swartz on July 28 (a copy of which Mayor Swartz provided to Ms. Hockensmith), Mr. Hoffman advised that "in order to investigate Ms. Hockensmith's allegations, I spoke with you and the other four members of the City Commission." Commissioners Darnell, Hobbs, and Ritchie, Mr. Hoffman continued, "each stated that he or she was not contacted by you or any other Commissioner, did not attempt to contact you or any other Commissioner, and did not discuss with you or any other Comissioner, the issue of raises for City personnel outside of a City Commission meeting." Mr. Hoffman noted that Mayor Swartz had acknowledged seeing Commissioner Jones "while walking your dogs and that you related to Commissioner Jones that Ms. Hockensmith had met with you and requested a raise which she believed would make her compensation as City Clerk commensurate with compensation received by other City Clerks." He further advised that Commissioner Jones had acknowledged expressing her opinion, either by telephone or during that impromptu encounter, that "because of the uncertainty of revenue coming from the Scott County Fiscal Court in the upcoming year, the City should slow down on raises for City personnel. " Both Mayor Swartz and Commissioner Jones confirmed to Mr. Hoffman they were "not contacted by any other Commissioner, did not attempt to contact any other Commissioner, and did not discuss with any other Commissioner, the issue of raises for City personnel outside of a City Commission meeting."
Having asked Mayor Swartz and each Commissioner about Ms. Hockensmith's allegation regarding a series of telephone calls between the Commissioners and the Mayor, Mr. Hoffman reported that Commissioners Darnell, Jones, Ritchie and the Mayor had each denied having any conversation with Ms. Hockensmith. Commissioner Hobbs indicated that she had spoken with Ms. Hockensmith "on more than one occasion," Mr. Hoffman observed, "and that she believes she is the Commissioner that Ms. Hockensmith alleges told her that she had not been contacted by any other Commissioner about raises for City personnel and that she did, in fact, make that statement to Ms. Hockensmith." She does not recall telling Ms. Hockensmith that a series of telephone calls had taken place between the Commissioners and you, Mr. Hoffman advised the Mayor, "but believes that she is the Commissioner that Ms. Hockensmith alleges told her about such phone calls." Commissioner Hobbs further stated that "she is not aware of, and does not believe, any such series of phone calls occurred. All other Commissioners, and you, stated that a series of phone calls as alleged by Ms. Hockensmith did not take place." According to Mr. Hoffman, Commissioner Jones confirmed that she is the Commissioner who referred to a 3% raise during the May 22 budget workshop; however, she stated that regardless of her exact wording "there had not been a prior agreement with you or any Commissioners as to the raise for City personnel and that she did not intend to avoid discussion of the issue at the meeting." All of the other Commissioners, and you, Mr. Hoffman concluded, said "there had not been any prior discussion, except as outlined above, or any prior agreement among the Commissioners to go with a 3% raise for City personnel. "
Quoting the language of KRS 61.810(1) and (2), Mr. Hoffman acknowledged that "it is impermissible for a quorum of the members of the City Commission to discuss a City matter through a series of phone calls as alleged by Mr. Hockensmith. However, it does not appear that such phone calls occurred." The remaining question, he observed, "is whether the conversation between you and Commissioner Jones violated" the Act. While a quorum of the agency is not permitted to discuss public business through a series of meetings or telephone calls, Mr. Hoffman correctly observed, "it is not impermissible for Commissioners to educate each other on specific issues. The conversation between you and Commissioner Jones was a communication between two members of the five members of the City Commission." Because a quorum of the agency was not involved, Mr. Hoffman concluded that "it does not fall within the situation addressed by the first sentence of KRS 61.810(2). Accordingly, Mr. Hoffman correctly advised the Mayor that said communication did not constitute a violation of the Act.
On appeal Ms. Hockensmith partially relied on the fact that discussion of the 3% increase during the May 22 meeting was "probably less than a minute, everybody was in agreement." Ms. Hockensmith asserted that after the meeting Police Chief Stephen Morris told her that Commissioner Jones had come to his office shortly before it began and stated, "'we are putting you all in for a 3%.'" According to Ms. Hockensmith, Chief Morris indicated that he believed the "we" to whom Commissioner Jones had referred was the Commission and there was no discussion. In relevant part, Ms. Hockensmith also noted that Mayor Swartz and Fire Commissioner Darnell "were joking about spending 30 minutes chatting outside following the previous meeting." When the Mayor was preparing to adjourn the May 22 meeting, she further observed, "I spoke up to ask about my raise. After some heated discussions, the Commission decided to stay with 3%. . . .There was no mention of my raise until I brought the subject up, but yet they were all in agreement."
Ms. Hockensmith also stated that Commissioner Hobbs "is the one I felt was left out of the process." On June 12, she advised, Mayor Swartz called me at City Hall, which is when "he shared with me the information about the phone calls. The Mayor stated that he thought I deserved the raise I had asked for but the other Commissioners wouldn't go along with it." Ms. Hockensmith asserted that Mayor Swartz had stated "that he had shared everything I said in our meeting with her (he indicated Commissioner Jones) and that she had called the other Commissioners and discussed raises and then they called the Mayor." She reiterated that Mayor Swartz felt an illegal meeting did not occur "because they had not all talked at once." However, when she relayed the conversation to Mr. Hoffman, "[h]e agreed this would constitute an illegal meeting." Ms. Hockensmith advised that on July 7, during a meeting she had Commissioner Jones and the Mayor, "Commissioner Jones stated that she had not discussed the raise with me as she was in agreement with 3%." Acknowledging that Mr. Hoffman's inquiry did not confirm this, Ms. Hockensmith "still stand[s] firm that these conversations did take place." Mayor Swartz "was also observed in Commissioner Ritchie's yard talking for over an hour" between the two budget meetings. Ms. Hockensmith "would have no problem taking an oath and swearing that everything included" in her correspondence is truthful.
Upon receiving notification of Ms. Hockensmith's appeal, Mr. Hoffman responded on behalf of the Commission. He included a sworn affidavit from each Commissioner attesting that, "I was not contacted by the Stamping Ground Mayor or any other Commissioner, did not attempt to contact the Mayor or any other Commissioner, and did not discuss with the Mayor or any other Commissioner, the issue of raises for City personnel outside a City Commission meeting." The affidavits of Mayor Swartz and Commissioner Jones otherwise verified the findings of Mr. Hoffman summarized above. Mayor Swartz also specifically denied telling Ms. Hockensmith "that there had been a series of phone calls among the Commissioners about raises for City personnel. " Mr. Hoffman acknowledged that it would be a violation of the Act "for a quorum of the members of a public agency, through a series of less than quorum meetings or conversations, to communicate with each other outside of a public meeting for the purpose of avoiding the requirements of KRS 61.810(1)." However, this did not occur. Although Mayor Swartz and Commissioner Jones did communicate regarding the subject of personnel raises, "that communication was between less than a quorum of the members of the City Commission," was not for the purpose of avoiding the requirements of the Act, "and was the type of communication expressly permitted by the last sentence of KRS 61.810(2)." In the absence of any objective proof that a quorum of the members of the City Commission 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 (whether by telephone, in person or via e-mail) for the purpose of avoiding the requirements of the Act, this office has no basis upon which to conclude that the City Commission 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; 13-OMD-142. 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 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 subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section." However, nothing in KRS 61.810(2) "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 that 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." Id.
Taking action, the Court noted, "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 (Mere discussion of what items should appear on the meeting agenda is not a substantive discussion of the issues, and therefore is not a discussion of public business that is subject to requirements of the Open Meetings Act. However, 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 constituted 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).). Discussion of whether to give City personnel a salary increase of 3% or 5% is unquestionably "public business. " However, the record on appeal is devoid of any objective proof that a quorum of the members of the City Commission 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, whether by telephone, in person or via e-mail, where the members participating collectively constituted at least a quorum of the members of the agency. 1
KRS 61.805(1) broadly defines "meeting" to include "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." The City Commission does not dispute that Mayor Swartz and Commissioner Jones -- two of the five members of the City Commission and less than a quorum -- had a single discussion regarding the subject of raises for City personnel. Standing alone, this discussion of public business involving less than a quorum of the agency did not violate the Act. See 12-OMD-145 (an isolated discussion between a single member of the school board and the superintendent would not, in and of itself, be subject to provisions of the Act). Ms. Hockensmith and the City Commission otherwise differ significantly in their accounts of the relevant facts. While this office has no reason to question the veracity of Ms. Hockensmith, evidence to conclusively refute the Mayor's or the City Commission's account of the discussions, or lack thereof, which preceded its May 22 meeting, is equally lacking. Under these circumstances, the Attorney General is unable to find that a violation of KRS 61.810(1) or (2) was committed. See 14-OMD-079, p. 4 (complainant believed that an unpublicized meeting(s) of a quorum of the city council occurred prior to meeting at which a quorum of the members discussed a recommendation that the city enact a particular ordinance but conflicting statements in the record and lack of evidence precluded a finding that agency had violated KRS 61.810(1) or (2)); see also 09-OMD-014; 11-OMD-006; 12-OMD-067; 13-OMD-142. Either party may appeal this decision by initiating action in the appropriate circuit court under 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:
Janice HockensmithBilly SwartzJoseph M. Hoffman
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