16-OMD-190

16-OMD-190

August 31, 2016

In re:        W. John Bourne/City of Bonnieville

Summary:        The undisputed facts establish that a quorum of the Bonnieville City Council engaged in a discussion following adjournment of its August 1, 2016, regular meeting, but do not establish that its discussion related to “public business.”  Accordingly, this office is unable to find that the City Council violated KRS 61.810(1). In failing to issue a timely written response upon receipt of the complaint made on August 2, 2016, the City Council violated KRS 61.846(1).  

Open Meetings Decision

        W. John Bourne initiated this Open Meetings Appeal per KRS 61.846(2), by letter dated August 11, 2016, challenging the failure of the City of Bonnieville to issue a written response per KRS 61.846(1) upon receipt of his August 2, 2016, written complaint alleging that the Bonnieville City Council violated the Open Meetings Act when a quorum of the members continued to discuss public business after its August 1, 2016, regular meeting was adjourned.¹  Mr. Bourne advised Mayor Denis Edwards and Mayor Pro Tem Sherman Bowman that the City Council “went into an illegal closed session” following adjournment of its August 1 meeting and he “was instructed to leave the meeting without council giving any disclosure as to what their closed session was about.”  In order to remedy the alleged violation of the Act, Mr. Bourne proposed that the City Council discuss at its “next regular meeting, in an open and public session, those matters that were discussed” following the August 1 regular meeting and that “[a]ny action taken as a result of the improperly called closed session be declared null and void.”  

        Upon receiving notification of Mr. Bourne’s appeal from this office, Mayor Edwards responded on behalf of the City Council. Mayor Edwards advised that the City Council held its regular meeting on August 1, 2016, at 6:00 p.m. CST. The meeting was adjourned by a majority vote of the City Council around 6:45 p.m.²  According to Mayor Edwards, after the meeting was adjourned the members of the City Council “held a personal meeting to discuss who would be seeking re-election.”  Mayor Edwards, City Attorney Charles Williams, and Editor Darca Jobe, Hart County News Herald (“Herald”), left after the meeting was adjourned. Because the discussion involved a “personal matter, and no official business was to be discussed and as this was not an official meeting of the Council, Mr. Bourne was requested to leave.”  Following Mr. Bourne’s departure, “no official business was discussed or official actions taken. All Council Members discussed if everyone was going to seek re-election. All individuals stated they were.  All members filed for re-election on August 3rd or 4th, and as this was a public record their names were printed in [the Herald].”  Mayor Edwards offered no explanation for the City Council’s failure to issue a timely written response upon receipt of the complaint.

        The City Council violated KRS 61.846(1) in failing to issue a written response of any kind to Mr. Bourne’s August 2 complaint. Pursuant to KRS 61.846(1), the “public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. . . .”  In construing KRS 61.846(1), this office has consistently recognized that it “does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period.”  03-OMD-116, p. 2; 10-OMD-171. As the Kentucky Court of Appeals observed when interpreting the parallel requirements of the Open Records Act codified at KRS 61.880(1), “[t]he language of the statute directing agency action is exact.”  Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029; 15-OMD-142. Simply put, KRS 61.846(1) requires a public agency to issue a written response within three business days of receiving a complaint and the City Council’s inaction violated the Open Meetings Act.  97-OMD-43; 11-OMD-114.  However, the record on appeal does not contain adequate proof to refute the City Council’s belated assertion that a quorum of the members only discussed the subject of which members were running for re-election, which is not an “issue about which [the City Council] has the option to take action,” i.e., “public business,” during the post-adjournment gathering on August 1.  Yeoman v. Commonwealth, 983 S.W.2d 459, 474 (Ky. 1998).    

        The fundamental mandate of the Open Meetings Act is codified at KRS 61.810(1), pursuant to which “[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.”  (Emphasis added.) This provision reflects the legislative statement of policy, codified at KRS 61.800, which declares that “the formation of public policy is public business and shall not be conducted in secret . . . .”  By virtue of these provisions, the General Assembly “demonstrated [its] commitment to ’open government openly arrived at.’” 99-OMD-146, p. 4, quoting Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N.J. Super. Ch. 1982). Thus, in a series of decisions dating back to 1978 the Attorney General has recognized that even a casual gathering of a quorum of the members of a public agency triggers the requirements of the Open Meetings Act if public business is discussed or action is taken. 01-OMD-30 (gathering of a quorum of the agency held for the purpose of discussing public business violated the Act even though it was informational and informal), citing OAG 78-411; compare OAG 78-634; 00-OMD-147 (no violation of the Act was found notwithstanding the fact that a quorum of the agency met at a local restaurant after its meeting as the members of the agency provided sworn statements denying that public business was discussed and no evidence was presented to controvert those statements).

        In construing KRS 61.810(1) and KRS 61.810(2),³ the Kentucky Supreme Court recognized that the Open Meetings Act “prohibits a quorum from discussing public business in private or meeting in numbers less than a quorum for the express purpose of avoiding the open meeting requirement of the Act.”  Yeoman at 474. However, the Court further observed that the “mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act. Id. In other words, even if a quorum of the members of the agency is present, “[f]or a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency.” Id.  The Court clarified that “[p]ublic 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 [agency] has the option to take action.”⁴ Id.

        The expansive definition of the term “public business” that appears in Yeoman, above, coupled with the expansive definition of the term “meeting” that is found at KRS 61.805(1),⁵ and the statement of policy found at KRS 61.800, import a legislative commitment to ensuring the broadest possible access to meetings at which public business is discussed or acted upon. KRS 61.810(1) must be construed with a view toward effectuating the intent of the General Assembly since “the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.”  E. W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990) cited in Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). See 07-OMD-100 (discussion by a quorum of Graves County Board of Education members regarding the rejection of a waiver of Department of Education regulations governing school construction during a return trip from Frankfort constituted a violation of KRS 61.810(1)); 10-OMD-169.  To be clear, the City Council “cannot, under any circumstances, continue to conduct public business after its meetings are adjourned.”  11-OMD-167, p. 6 (post-adjournment discussion of public business by a quorum of the agency violated KRS 61.810(1) “even if members of the media and the public were present and the discussions were inadvertent”); 10-OMD-134 (undisputed facts established that a quorum of the agency discussed public business, namely the removal of a member, following a special meeting and its post-adjournment discussion violated KRS 61.810(1)); 13-OMD-057 (record on appeal supported a finding that a quorum of the agency was present and that public business was discussed, which violated the Act); compare 12-OMD-048 (agency denied that any post-adjournment discussions of public business occurred and the record was “devoid of proof” to support claim that such discussions related to public business).  However, the facts presented are inconclusive on the question of whether public business was discussed in this case.

The undisputed facts establish that a quorum of the members of the City Council engaged in a discussion after its August 1 meeting was adjourned. However, the Mayor (who departed following the meeting) advised on appeal that only the subject of whether the individual members were planning to run for re-election was discussed. The City Attorney, who also left after the meeting was adjourned on August 1, did not elect to respond to Mr. Bourne’s complaint or appeal on behalf of the City Council.  Nor does the record contain affidavits from any members of the City Council who engaged in the post-adjournment discussion.  However, the record is equally lacking in terms of evidence to substantiate Mr. Bourne’s claim that a “meeting” was held without proper notice within the meaning of KRS 61.810(1).  “The mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act.”  Yeoman at 474.  “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.” Id.  See 12-OMD-048. If a quorum of the City Council engaged in any discussion of “the various alternatives to a given issue about which the [City Council] has the option to take action” following the adjournment of its August 1 meeting, any such discussion “clearly contravened the provisions of the Act. However, the record before us does not conclusively support or refute this claim.”  12-OMD-048, p. 7; 05-OMD-096 (Attorney General is “not empowered to engage in independent fact finding or to consider information that does not appear in the record,” and the conflicting statements of record preclude this office from concluding that a violation was committed); 08-OMD-115.

        Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.846(4)(a). The Attorney General must 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

#335

Distributed to:

W. John Bourne

Denis Edwards

Sherman Bowman

Charles Williams