Opinion
Opinion By: Jack Conway, Attorney General© Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
Jeff Moore, Publisher of The News-Democrat , initiated this appeal challenging the denial of the complaint he directed to Mayor Gene McMurry and three members of the Carrollton City Council, alleging that a "committee, made up of three councilmen who have been working on the Enterprise Incentive Program ordinance, has been holding meetings and has not notified The News-Democrat of those sessions. " In his undated complaint, delivered on November 17, Mr. Moore advised that per the newspaper's written request to receive notification of all meetings, 1 "including committee meetings that we sent to the city at the beginning of the year, we must be notified of these sessions for them to be in compliance with" the Open Meetings Act. "I know this is a voluntary committee, ad-hoc in nature, where the mayor asked for councilmen who were interested to work on the ordinance. However, despite [its] informal creation, it does qualify as a committee of city government" under the Act. To remedy the alleged violations, The News-Democrat asked to receive the requested notification of meetings.
In a timely written response, legal counsel for the City advised Mr. Moore that said individuals, "who are duly elected council members of the City of Carrollton," did not violate the Open Meetings Act. Paraphrasing the definition of "public agency" codified at KRS 61.805(2)(d), counsel maintained that, "These individuals were not operating as a committee either by resolution, ordinance or other legislative act, and therefore are not subject to the Open Meetings Act. These three council members volunteered to commit a considerable amount of time to consult with each other about city business." Counsel further maintained that the volunteers could not be properly characterized as an ad hoc committee under KRS 61.805(2)(g) "because it was not 'established, created and controlled' by the council. The obligations of council members require them to speak to each other about issues concerning the city, not only during meetings but as the issues arise, to effectively and efficiently serve the public." Because the three Council members were "merely acting within the scope of their duties" by reviewing a controversial ordinance, the City did not believe that their actions violated the Act.
On appeal Mr. Moore advised that "a committee of Carrollton City Councilmen met on several occasions to work on changes and updates to the ordinance, the last of those on or about October 31, 2014." Their "status as a committee" became clear at the November 10, 2014 regular meeting of the Council, he observed, "when Councilman Dwight Louden explained how three members came to work on the ordinance. " According to Mr. Moore, Councilman Louden explained that three members of the Council, including him, stepped forward when Mayor McMurry asked for volunteers to perform this task, making the group a "committee" under the Open Meetings Act. Mr. Moore observed that Councilman Louden "repeatedly called the group of Councilmen a 'committee' during discussion at this meeting." Under KRS 61.805(2)(b), (e), (f), and (g), as well as
Lexington-Herald Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884 (Ky. 1987) (holding that Presidential Search Committee created by formal action of the UK Board of Trustees, a public agency created by statute, was itself a public agency) 2 and 06-OMD-068 (committee in dispute was established, created, and controlled by the Independence City Council, a public agency, which meant it was a public agency within the meaning of KRS 61.805(2)(g)), Mr. Moore concluded, the committee is a public agency for purposes of the Open Meetings Act.
Mr. Moore further asserted that whether the members of the committee "volunteered" to serve is irrelevant, citing 06-OMD-068 in support of his position. Additionally, "there is no question that this committee is a committee or subcommittee of Carrollton City Council," which is a public agency. 3 Regardless of the method of appointment or its authority to take action, he reasoned, "KRS 61.820(1) mandates that '[a]ll meetings of all public agencies of this state, and any committees or subcommittees thereof , shall be held at specified times and places that are convenient to the public.' (Emphasis added.)" Inasmuch as the The News-Democrat filed a written request to receive notification of all meetings of city agencies per KRS 61.823(4), and the group of three Council members in dispute, i.e ., committee, is "clearly a committee or subcommittee of the City Council," Mr. Moore contended that its failure to notify the newspaper of its meetings violated the Act. Based upon the following, this office agrees.
Upon receiving notification of Mr. Moore's appeal from this office, counsel for the City reiterated that, "Regardless of the verbiage used by Councilman Louden, no committee was created, maintained or controlled by the city." In essentially responding to Mr. Moore's argument relative to KRS 61.805(2)(d), the City maintained that the City Council "took no formal action, through ordinance, resolution or otherwise to establish a committee." Distinguishing 06-OMD-068, counsel for the City noted that a lengthy discussion there revealed that "several people intended to create a committee, even if they did not follow through with the formalities of creating it and appointing members. However, Mr. Moore has not alleged that the circumstances leading to the formation of Carrollton's group of volunteers are similar." Mayor McMurry asked for volunteers to review the City's Enterprise Incentive Program. The City did not provide a copy of the minutes from its November 10 meeting, observing instead that "Carrollton's City Clerk has reviewed the minutes from the meetings around the time the group started meeting and did not see any discussion about a committee." Counsel argued that Mr. Moore's discussion regarding appointment of committee members and the committee's authority "is irrelevant as there was no committee." Rather, the volunteers were "merely fulfilling their duties as Councilmen by reviewing an ordinance which had proven to be problematic to the City."
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing
Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In discharging this duty, the Attorney General is not at liberty to add or subtract from the legislative enactment or "discover meaning not reasonably ascertainable from the language used." Id. Rather, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not expressed.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997); KRS 446.080(4).
Our analysis must also be guided by the statement of legislative intent set forth at KRS 61.800, pursuant to which "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." This declaration "is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency." Presidential Search Committee at 886. In construing this provision, the Kentucky Supreme Court held that public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny,"
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997), as "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," and the "express purpose" of the Act is "to maximize notice of public meetings and actions." Id. at 923, citing
E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990). In Scripps , the Kentucky Court of Appeals likewise declared that "the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. " Id. at 452.
"Public agency" is broadly defined at KRS 61.805(2). Mr. Moore specifically relied upon subsections (b), (e), (f), and (g) on appeal. Because the committee itself has no governing body, KRS 61.805(2)(f) is inapposite. 95-OMD-71; 08-OMD-074. Likewise, KRS 61.805(2)(d) is facially inapplicable as the committee was not created by or pursuant to statute, executive order, ordinance, resolution, or legislative act. Even assuming that insufficient evidence has been presented from which to conclude that the City Council, a public agency, "established, created, and controlled" the "committee," as required for KRS 61.805(2)(g) to apply, however, the fact remains that KRS 61.805(2)(b), pursuant to which "[e]very state or local legislative board, commission, and committee " is a "public agency, " is controlling on the facts presented. (Emphasis added.) The City has not provided any evidence to refute Mr. Moore's position relative to KRS 61.805(2)(b) or support its assertion that "there was no committee," and simply restating that opinion is not persuasive. See 10-OMD-168 (Attorney General was unable to rule in favor of the agency, which failed to address the complainant's allegation or provide any evidence to support its claim despite being in a much better position to provide documentary proof).
The City is correct in arguing that Councilman Louden's verbiage during the City Council's November 10, 2014 meeting is not dispositive; however, the converse is equally true. Regardless of whether the City's legislative body characterizes the group of Council members, which admittedly was formed exclusively for the purpose of discussing public business, 4 namely, issues regarding a specific ordinance, a "committee," a review of the minutes from its November 10, 2014 meeting (located independently on the City's website) supports Mr. Moore's position regarding the function of the three Council members, which is dispositive. 5 Taylor v. Bowling Green Municipal Utilities , 6 above, citing 95-OMD-71 ("It is not the name which a group is given that is determinative, but its function.").
The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), 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[.]" Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of a public agency at which either public business is discussed or action is taken. KRS 61.820 provides that all meetings of all public agencies, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public." It further mandates that all public agencies "provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. ", 7 The term "meeting" is broadly defined at KRS 61.805(1) 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."
Accordingly, gatherings of a quorum of the local legislative committee at which it discussed public business were meetings of a public agency, subject to all provisions of the Open Meetings Act, whether the committee took action or not. See 99-OMD-77 (inasmuch as the Finance and Budget Committee, standing alone, constituted a "public agency" under KRS 61.805(2), this office looked not to the total composition of the Fiscal Court, but to the total composition of the Committee itself to determine whether a quorum was present); 06-OMD-068 (advisory role of committee does not warrant a different outcome); compare Taylor , above. "Regardless of the label attached to the body, it is, in fact, subject to the Open Meetings Act if it is a public agency within the meaning of KRS 61.805(2), and the business it conducts does not fall within the parameters of" KRS 61.810(1). OAG 91-54, p. 1. The committee's failure to notify The News-Democrat of its meetings per KRS 61.823(4) violated the Act. 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.
Footnotes
Footnotes
1 See KRS 61.823(4)(a).
2 In OAG 94-25, this office noted that KRS 61.805(2) "has undergone substantial revision and the applicability of the court's analysis to the current statutory language is open to question." Id., p. 2. Presidential Search Committee was also distinguished in Taylor v. Bowling Green Municipal Utilities , No. 2011- CA-00592, 2012 WL 5371994 (Ky. App. Nov. 2, 2012), the analysis of which, like 06-OMD-068, turned on the application of KRS 61.805(2)(g). Because KRS 61.805(2)(g) is not determinative on the facts presented, further discussion is unwarranted.
3 The City of Carrollton is a fourth-class city according to its website, http://carrolltonky.net, and the City Council is comprised of six members; four members are required for a quorum.
4 In Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."
5 Councilman Louden's comments were summarized as follows:
Said he had a problem with it [the EIP Ordinance]. The Mayor asked for volunteers to rewrite it. Three of the Councilmembers volunteered to do that - himself, Councilman Adams and Councilman Gordon. They met two or three times per week for a couple of months. About a year ago it was sent to DRB [Design Review Board]. They kept it for a year before bringing it back which was just recently. The three met diligently again and found DRB had made lots of changes bringing it back to the original wording which they did not like. Also there were issues recently that had come up that they addressed. They discussed it with legal and John Welch. He also had attended their meetings. Their idea was to have the first reading and if changes need to be made they could be made after.
Under the heading of " 1st Reading: Ordinance # 2014-25: Updating EIP Ordinance ," the minutes provide:
Before a motion was made to have the 1st reading, Councilwoman Deatherage asked the question: "Did the Mayor appoint the three of you as a committee?" Councilman Louden responded that during a Council meeting the Mayor asked for three volunteers to work on rewriting the EIP Ordinance. Councilwoman Deatherage asked if that was done during Council and was voted on. Attorney Ed James said he thought the Mayor had the authority to do that whether done on the record or in the minutes.
6 Taylor is an unpublished opinion that may be cited for consideration if there is no published opinion that adequately addresses the issue per CR 76.28(4)(c).
7 If a public agency does not have sufficient business to justify meeting on a regular basis, it must, in the alternative, comply with all requirements for special meetings codified at KRS 61.823 as every meeting is either a regular meeting or a special meeting. 13-OMD-208, p. 6.