17-OMD-151
July 27, 2017
In re: McLean County News/McLean County Joint Planning Commission
Summary: McLean County Joint Planning Commission violated KRS 61.835 to the extent it may have attempted to conduct a rezoning vote by anonymous paper ballot, and violated KRS 61.810 inasmuch as the paper ballots constituted discussion of public business in secret.
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the McLean County Joint Planning Commission violated the Open Meetings Act when it voted by anonymous paper ballot1 on a rezoning matter at its June 20, 2017, regular meeting, irrespective of whether the poll was an actual vote.
On or about June 28, 2017,2 McLean County News Managing Editor Don Wilkins submitted a written complaint to Nancy Wetzel, Chairperson of the McLean County Joint Planning Commission, in which he alleged that at its June 20, 2017, meeting, the Commission “conducted a ‘secret ballot’ vote in whether to rezone property from agricultural to industrial” and “the public was not allowed to know who voted in favor or against the rezoning.” As a remedy for the alleged violation, Mr. Wilkins proposed that the Commission “hold a new meeting and a new vote that is done publicly so that it is clear who votes yes or no; make public who voted yes or no prior to the new meeting; acknowledge that the June 20 meeting violated state law and pledge not to conduct a secret ballot vote again.”
Ms. Wetzel received the complaint on June 30, 2017, and replied by letter dated July 3, 2017, stating as follows:
Please be advised that it is my belief that no violation of open records [sic] occurred on June 20, 2017, because no action was taken by the board on that date. It is my understanding that Ms. Salmons [on behalf of Mr. Wilkins] was advised that action had not in fact occurred and that action by the planning and zoning would take place at a later date for the board to render findings of fact and an actual recommendation to the fiscal court regarding any amendment to the zoning map of McLean County. But in any event, consistent to your request of June 23, 2017, in an effort to avoid any appearance of impropriety, the Board is going to conduct a second hearing on this matter on July 19, 2017 at the hour of 6:00 p.m., central time.
Mr. Wilkins initiated this appeal on July 6, 2017.
On July 14, 2017, McLean County Attorney Donna M. Dant responded to the appeal on behalf of the Commission. She clarified that the next meeting was in fact scheduled for July 20, 2017, and further stated:
Please note that Ms. Wetzel did not know or believe that the board was taking a final action nor that her method of attempting to get a consensuses [sic] as to how the board may vote for the rezoning of the property was in violation of any open records [sic] law.
….
With respect of the request of identification as to who voted how, for which Mr. Wilkins complains, Ms. Wetzel would provide that information to Mr. Wilkins if she had that information to provide. However, not only was there no record made of who “voted yes” and who “voted no” with respect to their position regarding a future recommendation to the McLean Fiscal Court on the zoning issue that was before the board, there was no identification made in the polling taken by Ms. Wetzel.
(Emphasis added.) Since the phrase “did not know or believe” is ambiguous as to whether the Commission intended the anonymous vote to be “action taken” within the meaning of the Open Meetings Act,3 we consider both possibilities.
We begin with the possibility that the anonymous vote was intended as an action of the Commission. KRS 61.835 provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
In light of the principle that “[t]he formation of public policy is public business,”4 this office has consistently construed KRS 61.835 to require a public vote of the members in attendance and a record of how each member voted.
In OAG 82-341, we opined that “[w]hen final action is taken by a public agency in open session the vote cannot be by secret ballot and it must be recorded in the minutes how each member voted.” Subsequently, in OAG 91-196, we considered whether the vote of a public agency by secret ballot was permissible as long as the minutes recorded the number of votes for and against, and concluded that a public body “cannot vote by secret ballot and the minutes of the meetings … must indicate how each member voted on each issue before [it].” See also 01-OMD-141 (use of paper ballots was an improper “secret ballot” where “the public was unable to ascertain how each member [voted], either by observing the vote, or by reviewing the minutes of the meeting reflecting the vote”). Therefore, to the extent that the Commission may have intended the paper ballots as an actual vote, it violated KRS 61.835.
Assuming, alternatively, that no actual vote was attempted at the June 20 meeting, we nevertheless find a violation of the Open Meetings Act. Pursuant to KRS 61.810, “[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed … shall be public meetings, open to the public at all times,” unless a legal basis for a closed session is properly invoked.5 In 01-OMD-110, we stated that a public agency in open session “must avoid any whispered, inaudible, or closed discussion of the public’s business.” This rule is based upon the statutory premise that “the formation of public policy is public business and shall not be conducted in secret.” KRS 61.800; see also 95-OMD-99 (“members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings”). A vote by the members, even if only a “straw vote” to ascertain consensus, constitutes a communication about public business and should not have been conducted in secret during an open session. Accordingly, we find that the use of anonymous paper ballots violated KRS 61.810.
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 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
James M. Herrick
Assistant Attorney General
#274
Distributed to:
Mr. Don Wilkins
Ms. Nancy Wetzel
Donna M. Dant, Esq.
[1] Because these paper ballots did not identify the member casting the vote, they could not be publicly announced and read into the record to reflect “an accurate record of votes and actions” as required by KRS 61.835.
[2] Although the complaint to the Commission was dated June 23, 2017, the Commission indicates that it was postmarked June 28, 2017.
[3] “‘Action taken’ means 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).
[4] KRS 61.800.
[5] “Public business is the discussion of the various alternatives to a given issue about which the [public agency] has the option to take action.” Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459, 474 (Ky. 1998).