16-OMD-065

16-OMD-065

March 31, 2016

In re:        Lawrence Trageser/University of Louisville Board of Trustees

Summary:        Conflicting evidence presented on appeal prevents the Attorney General from conclusively resolving the question of whether members of the University of Louisville Board of Trustees had a private meeting with President James Ramsey for the purpose of discussing public business, namely, his future with the University.  Even assuming that a few Board members, but less than a quorum, did have such a meeting with President Ramsey as the complaint alleged, the requirements of the Open Meetings Act would not have applied. In the absence of convincing proof that a quorum of the members of the Board was present at a single meeting from which the public was excluded, this office has no basis upon which to find that the Board violated KRS 61.810(1) or (2). 

Open Meetings Decision

        Lawrence Trageser initiated this appeal per KRS 61.846(2) by letter dated March 1, 2016, challenging the disposition of his February 22, 2016, complaint alleging that University of Louisville (“University”) President James Ramsey and the University Board of Trustees (“Board”) violated the Open Meetings Act when President Ramsey and members of the Board held an “illegal” meeting “at his home or other site to discuss his position status as President and potential future changes or removal of him from the position of President.”  Mr. Trageser asserted that said meeting violated KRS 61.820 and 61.823 “because it was neither an approved regularly scheduled meeting nor an approved ‘SPECIAL’ meeting.”  In support of his complaint, Mr. Trageser enclosed a hard copy of a February 17, 2016, article from http://www.WHAS11.com, in which WHAS reporter and news anchor Doug Proffitt indicated that WHAS had “confirmed independently, what Kentucky Sports Radio host Matt Jones first broadcast Tuesday morning [February 16, 2016] . . . . Ramsey had a private meeting at his home near PeWee Valley over the weekend, with a few members of the Board of Trustees, with whom he’s close.”  (Emphasis added.) However, an update also dated February 17, 2016, advised that the University and one member of the Board were denying the story that President Ramsey had an “informal meeting with a few board members at his house over the weekend and talked about his future.”  (Emphasis added.)  

        To remedy the alleged violation(s) of the Act, Mr. Trageser first proposed that President Ramsey and the Board “cease and desist from engaging in any further illegal meetings” and “obtain a copy of the Kentucky Open Records and Open Meetings Act, read it, understand it, follow it and legally abide by it.”  Second, Mr. Trageser asked President Ramsey and the Board to “address the student body, the university administrators and the general public with an apology for their illegal actions and misconduct.”  Finally, Mr. Trageser proposed that President Ramsey and the Board “provide a notarized affidavit signed by each respectively, confirming or denying their attendance, involvement and knowledge of any illegal and unscheduled meetings conducted in the last 90 days between the [Board] and President Ramsey at his home or any other place, for any purpose involving any business of the [University],” including President Ramsey’s position or future standing.  In a timely written response, Jake Beamer¹ acknowledged receipt of Mr. Trageser’s February 22 complaint and responded on behalf of the Board. “Contrary to your allegations,” Mr. Beamer advised, “no meeting of the Board of Trustees has taken place in the last 90 days in violation of the Kentucky Open Meetings Law.”  Mr. Beamer did not clarify whether no meeting was held at which a quorum of the Board was present or that no meeting between President Ramsey and members of the Board was held aside from regularly scheduled meetings or properly noticed special meetings.

        On appeal Mr. Trageser reiterated his belief that President Ramsey “engaged in a secret and private meeting with a few members of the [Board] at his home.”  (Emphasis added.) On March 2, 2016, this office issued a Notification to Agency of Receipt of Open Meetings Appeal to General Counsel for the University, advising that any response must be received no later than Friday, March 4, 2016. As of today’s date, this office has not received any response on behalf of the University. However, in the absence of convincing proof that a quorum of the members of the Board was present at a single meeting from which the public was excluded, or that members of the Board 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 Board violated the Open Meetings Act. See KRS 61.810(1) and (2). 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); 14-OMD-183 (a single discussion regarding the subject of raises for City personnel – public business – involving only two of the five members of the City Commission and less than a quorum did not violate the Act); 05-OMD-164.

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.”  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)].”  (Emphasis added.) 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.  

        In the interest of clarity, this office notes that if even a single “meeting” as defined at KRS 61.805(1) occurred at which a quorum of the members of the Board engaged in a discussion of “public business,” including the subject of President Ramsey’s future with the University, and that meeting was not on the regular meeting schedule adopted in accordance with KRS 61.820, the Board was required to not only hold that meeting in a public forum per KRS 61.810(1) but also comply with other provisions of the Act, such as KRS 61.823 (notice requirements for special meetings).

        However, the Board has flatly denied that any such meeting occurred. Under the circumstances presented, this office is unable to find that the Board violated KRS 61.810(1) or (2). See 08-OMD-234 (Attorney General could not find that a violation was committed as the record on appeal contained two widely disparate factual narratives but if a quorum of the public agency discussed public business after its meeting was adjourned, that action was improper); 09-OMD-014; 11-OMD-006; 12-OMD-067; 13-OMD-142; 14-OMD-183.

        Even assuming the factual accuracy of Mr. Trageser’s complaint and the media reports upon which it was premised, the record on appeal establishes at most that a “few members of the Board” met in a nonpublic forum with President Ramsey on a single occasion for the purpose of discussing his future at the University. Pursuant to KRS 164.821(1), the Board consists of seventeen (17) members appointed by the Governor, one member of the teaching faculty of the University, a member of the permanent staff of the University, and a member of the student body.  A quorum is the “minimum number of members (usu. a majority of all the members) who must be present for a deliberative assembly to legally transact business.”  Black’s Law Dictionary (9th ed. 2009). Thus, a single gathering of “a few members of the Board” and the President, was not impermissible if such a gathering did, in fact, occur. See KRS 61.810(1); 12-OMD-145 (an isolated discussion by a single board member with the superintendent would not, by itself, be subject to the Act); 13-OMD-142 (even assuming the accuracy of a quotation attributed to the Mayor, the fact that “prior discussions” may have been held “individually and as a group,” standing alone, did not establish that a violation of the Act was committed nor did responsive e-mails).

         The record on appeal does not establish that a single “meeting” of a quorum of the members of the Board 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 10-OMD-210. In the absence of a quorum at a single meeting, or collectively at a series of meetings, there “was not a public meeting under the Open Meetings Act.”  00-OMD-200, p. 6, quoting 93-OMD-63; 13-OMD-166 (because there was no quorum of the members of the board of education, there was no meeting and no violation was committed); 10-OMD-210; compare 13-OMD-057 (Murray State University Board of Regents violated KRS 61.810(1) when a quorum of the members discussed public business during a meeting held at the home of a Regent for which proper notice was not provided).

         Either party may appeal this decision by initiating action in the appropriate circuit court per 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.

                                                Andy Beshear        

                                                Attorney General

                                                Michelle D. Harrison

                                                Assistant Attorney General

#104

Distributed to:

Lawrence Trageser

Leslie Chambers Strohm