Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Kentucky House of Representatives ("House") violated the Open Meetings Act in holding a closed meeting with a quorum present to discuss pension reform. We find that the House of Representatives violated the Open Meetings Act in holding a closed meeting with a quorum present to discuss pension reform.
On August 29, 2017, members of the House met in a closed meeting to discuss pension reform. On September 6, the Bluegrass Institute for Public Policy Solutions ("Bluegrass Institute") submitted a complaint to House Speaker Jeff Hoover. The Bluegrass Institute cited 93-OMD-63 and 93-OMD-64 to argue that "as a state legislative body the House of Representatives is a public agency pursuant to KRS 61.805(2)(b) and its meetings are subject to the open meetings act." Further, the Bluegrass Institute argued that a quorum of the House was present, and that the meeting was not a permissible closed caucus meeting. 1
The House responded to the complaint on September 6, 2017. It described the meeting as "a meeting of the House Majority Caucus, which was open to members of the House Minority Caucus, " and argued that "both of these entities are specifically exempt from the Open Meetings Law." The House argued that KRS 61.810(1)(i) exempts "committees of the General Assembly other than standing committees" from the application of the Open Meetings Act. It stated that "the House Majority Caucus is a committee of the General Assembly, but it is not one of the standing committees." It stated that "in 1994, the House adopted 1994 RS House Resolution 45, which established the Majority and Minority Caucuses of the House of Representatives, and stated that they 'are deemed to be committees, other than standing committees, of the House of Representatives and General Assembly.'" The House also argued that application of the Open Meetings Act to such meetings would violate separation of powers. 2
The Bluegrass Institute initiated this appeal on October 17, 2017. It restated the arguments in its complaint, and further argued that the meetings at issue were not exempt because they "constituted a majority caucus meeting to which the minority caucus was invited. . . . The presence of members of the minority party at a meeting of the Majority Caucus is factually antithetical to Speaker Hoover's characterization of that meeting as a majority caucus meeting." The House responded to the appeal on October 20, 2017, reiterating and developing the arguments in its response to the complaint.
KRS 61.810(1) provides that "all 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 the following: . . . (i) Committees of the General Assembly other than standing committees." In 93-OMD-63 and 93-OMD-64, two substantively identical open meetings decisions, 3 journalists appealed "being excluded from a meeting of House members who had gathered for the purpose of obtaining information about Governor Jones' health care reform proposal." 93-OMD-63. In those decisions, "a memorandum was sent to members of the House Majority Caucus concerning an 'informational session for legislators on health care reform legislation.'" Id. In response to open meetings complaints that this session was closed to the public, the House responded that "no quorum of the House of Representatives . . . was present at any time during the course of the . . . caucus meeting." Id. The journalists appealed, and alleged that "this was not merely a meeting of the Majority Caucus. In fact, every member of the House was invited and encouraged to attend, regardless of party affiliation. " Id.
Beginning our analysis, we held that "the Open Meetings Act, generally, applies to the House of Representatives." Id. We reasoned that:
Among the exceptions to open and public meetings is KRS 61.810(1)(i) stating that "Committees of the General Assembly other than standing committees" can be excepted from the open meetings provision. If the House of Representatives was, generally, excluded from the coverage of the Open Meetings act, then the law would not make a distinction as to what kinds of House Committees are excluded from the provisions of the Act.
Id. We noted that "this office does not know who specifically attended the meeting but if invitations were extended to all members, regardless of party affiliation, then, by definition, the meeting was not a caucus meeting." Id. However, we concluded that "a quorum was not present and nobody has contested or refuted that statement. Thus, if a quorum was not present the meeting was not a public meeting under the Open Meetings Act. " Id. In 93-OMD-63 and 93-OMD-64, we held that the General Assembly chose not to exempt itself from the Open Meetings Act, as it had chosen only to exempt "committees other than standing committees." KRS 61.810(1)(i). However, the meeting at issue in those decisions did not involve a quorum, and accordingly, we did not find a violation of the Open Meetings Act.
In 94-OMD-23, we considered whether the House Democratic Caucus was a committee of the General Assembly that was exempt under KRS 61.810(1)(i). We held that "the House Democratic Caucus is not a committee of the General Assembly and, therefore, is subject to the provisions of the Open Meeting Act. We reach this conclusion based on our understanding that the House Democratic Caucus was created by the Legislative Research Commission and not by the General Assembly." 94-OMD-23. We further noted that "the General Assembly may, of course, decide to establish the House Democratic Caucus as a committee of the General Assembly. If that occurs, any decision regarding the applicability of the Open Meetings Act to that committee would depend on the nature of the committee formed by the General Assembly and on the specific circumstances surrounding any particular Open Meetings issue." The General Assembly subsequently by resolutions expressly created the caucus committees as committees other than standing committees.
In this case, unlike in 93-OMD-63 and 93-OMD-64, a quorum of the House was present. The House contends that the meeting was "a meeting of the House Majority Caucus, which was open to members of the House Minority Caucus. " In 93-OMD-63, we expressly stated that "if invitations were extended to all members, regardless of party affiliation, then, by definition, the meeting was not a caucus meeting." We see no reason to depart from that precedent. Although it is unclear from the record who was present for the meeting, it does not appear to be disputed that there was both a quorum present and members of both the majority and minority caucus present. Accordingly, the meeting was not a caucus meeting, and is subject to the Open Meetings Act. In closing the meeting to the public without an authorized exception, the House violated the Open Meetings Act.
The House raises the additional question of whether the application of the Open Meetings Act violates separation of powers. 4 In 98-ORD-92, we considered whether the Attorney General's adjudication of an open records appeal involving the Legislative Research Commission violated separation of powers. We rejected this argument on the grounds that "the General Assembly did not exclude itself from the Open Records Act in enacting KRS 61.870 to 61.884 , but instead made the Act binding upon itself and the Legislative Research Commission by expansively defining the term 'public agency. '" 98-ORD-92. We held that "the General Assembly, having crafted the Open Records Act to include its own records, is bound by the terms of the Act, including the mechanism for administrative review by the Attorney General which it enacted into law." Id. 5 Applying that reasoning here, the General Assembly chose not to exempt itself entirely from the Open Meetings Act, and KRS 61.846(2) expressly provides that "the Attorney General shall review the complaint and denial and issue a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." In issuing decisions under the Open Meetings Act, the Attorney General is only fulfilling the duties set out by the General Assembly, and does not violate separation of powers.
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.
Footnotes
Footnotes
1 As a remedy, the Bluegrass Institute requested "that the House of Representatives acknowledge that it violated KRS 61.810(1) in conducting a closed meeting of a quorum of its members at which public business was discussed. In addition, we propose that the House provide the public with a copy of any written record or audio or video recording of the closed session. Finally, we propose that the House issue a resolution committing to future compliance with the requirements of the open meetings law."
2 The House also argues that "any meetings or discussions pertaining to potential legislation made confidential by KRS 7.119 and 7.120 relating to the drafting of legislative matters . . . would be exempt from disclosure as well." KRS 7.119 deals with legislative records, and KRS 7.120(3) provides that draft legislation matters shall remain confidential until the legislation is introduced or otherwise authorized for release. Those statutes deal primarily with records and not open meetings, and are not directly relevant here.
3 Since the decisions are substantively identical, we refer to 93-OMD-63 throughout.
4 KY. CONST. § 27 divides the powers of government into legislative, executive, and judicial, and KY. CONST. § 28 provides that "no person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted." KY. CONST. § 39 provides that "each House of the General Assembly may determine the rules of its proceedings." KY. CONST. § 43 provides that "the members of the General Assembly . . . for any speech or debate in either House . . . shall not be questioned in any other place."
The House argues that these provisions render the issue a nonjusticiable political question, citing Bd. of Trustees of Judicial Form Ret. Sys. v. Att'y Gen. of Commonwealth, 132 S.W.3d 770 (Ky. 2003) and cases discussed therein. Id. at 776-78. Board of Trustees dealt with a bill that amended the Judicial Retirement Act, KRS 21.450(3), without the actuarial analysis required by KRS 6.350. Id. at 772. The court held that KRS 6.350 "is procedural in nature and has no constitutional implications," and that "a statute enacted in contravention of a legislative procedural rule is not invalid per se." Id. at 777. While Board of Trustees is instructive as to the effect of a statute enacted without strict compliance by the legislature, it is not on point as to the application of the Open Meetings Act to the legislature generally.
Determining the effect of the House's noncompliance with the Open Meetings Act is beyond the purview of this office in an open meetings appeal. KRS 61.846(2) provides only that the Attorney General shall review the complaint and denial and issue a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." "The Attorney General is not empowered to declare the committee's actions null and void . . . . Our review is confined to the issue of whether the agency violated the Open Meetings Act and not the remedial measures it implements." 07-OMD-196. We are not authorized to determine any remedies or assess any penalties in the context of an open meetings appeal, and any resolution of such questions must be made by a court of competent jurisdiction. KRS 61.848.
5 The legislature subsequently enacted KRS 7.119 to govern access to legislative records.