Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Louisville Metro Government, specifically the Planning Commission ("Planning Commission") or its Land Development and Transportation Committee ("LDT Committee"), violated the Open Meetings Act by discussing public business in a series of e-mails between September 19, 2017, and October 11, 2017. David Fink submitted his written complaint dated October 4, 2018, via certified mail (and e-mail) to Vanessa Burns, Director of Public Works; he did not receive a written response per KRS 61.846(1). Accordingly, Mr. Fink initiated the instant appeal dated October 25, 2018. In the undated copy of the complaint attached to his appeal, Mr. Fink stated that his complaint followed the September 14, 2017, "technical review committee hearing for 16ZONE1037." The alleged violated of the Open Meetings Act, he asserted, "consists of electronic conversations between multiple agencies, who amongst themselves and without input from the public developed and finalized public policy regarding the use of private roads and the elimination of sidewalks instead of requiring the purposed public streets and sidewalks meet existing codes." He attached hard copies of the subject e-mails, which Jeffery Brown initiated, regarding the "Fairground Run -- Driveway/Parking Options." 1
"Email conversations then ensued," he stated, "between Jeffery Brown, Mark Dutrow, Tammy O Markert, Julia Williams, Chad Whitaker and Chris Crumpton," which culminated in the October 12, 2017, e-mail sent to Director Burns. Mr. Fink maintained that the e-mails "were not merely discussions among coworkers regarding potential options. The emails [developed] among the several agencies involved a quasi-committee." In the course of the e-mails, the individuals developed "the idea of private roads with the inclusion and revisions of variances to the plans by the developer. " The plans were then finalized and the group made a decision "prior to the Land Development and Transportation Committee meeting." Mr. Fink asserted this discussion "and the arbitrary nature of the decisions is a violation of my right to procedural due process." To remedy the alleged violations, Mr. Fink proposed that Mr. Brown "should be removed from the [Planning Commission] as the representative of the Department of [Public] Works"; the "arbitrary decision to change from private to public roads along with the elimination of sidewalks should be set aside and vacated"; a policy "should be developed and enforced that no part of any plan be made final prior to being heard by the public and comments received"; and, the attached form ["Waiver Form for Private Streets" ] should be utilized to avoid the current situation in the future where written permission is required but never actually given."
This office has long recognized that KRS 61.846(2) expressly defines our authority to include "review[ing] the complaint and denial and issu[ing] within ten (10) [business] days, . . . a written decision stating whether the agency violated the provisions of [the Open Meetings Act] ." In sum, the Attorney General is "not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]" in the context of an Open Meetings Appeal. 02-OMD-22, p. 4; 10-OMD-120; 15-OMD-142. Further, 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); 13-OMD-142; 05-OMD-164. In the absence of any objective proof that a quorum of the members of the Planning Commission or its LDT committee, was present at a single meeting from which the public was excluded, or that members engaged in a series of less than quorum meetings (whether by telephone, in person or via e-mail) for the purpose of avoiding the requirements of the Act, this office has no basis upon which to conclude that the Planning Commission or its LDT Committee violated the Open Meetings Act. See KRS 61.810(1) and (2).
Upon receiving notification of Mr. Fink's appeal, Assistant Jefferson County Attorney Annale R. Taylor responded on behalf of the Louisville Metro Government ("Metro"). She first explained that Planning & Design Services, a "department within the Develop Louisville department of the Louisville Forward branch of Metro[,]" is responsible for, among other things, "advising the Planning Commission, Board of Adjustment, and the Historic Landmarks and Preservation Districts Commission on decisions affecting the built environment." The Planning Commission is comprised of 10 members per KRS 100.137 . The Mayor appoints eight citizen members per KRS 67C.139, who are Jefferson County residents; the remaining members are the Mayor or his designee, and the Director of the Metro Public Works Department or the County Road Engineer, as determined by the Mayor. The Planning Commission "then holds a public hearing and votes to recommend approval or denial to the proper legislative body," Ms. Taylor stated, which possesses the ultimate approval or denial authority. 2
The Bylaws of the Planning Commission identify five standing committees, including the LDT Committee, which makes recommendations to the Planning Commission. Ms. Taylor noted that Mr. Brown is the only Metro employee on the Planning Commission; the LDT Committee is comprised of five members of the Planning Commission, including Mr. Brown. The subject e-mails were between Mr. Brown, three other Metro employees, and Chad Whitaker, the private developer's project manager. A Chris Crumpton is also copied on the e-mail from Mr. Whitaker but appears nowhere else in the e-mail communications. Because Metro does not have an employee named Chris Crumpton, "it is presumed Chris Crumpton is part of Alpha Omega Innovations, LLC and working with the private developer" and Mr. Whitaker. Neither Mr. Whitaker nor Mr. Crumpton is a member of the Planning Commission.
Mr. Brown is the only member of the Planning Commission who participated in the e-mail discussions that prompted Mr. Fink's complaint, and one individual does not constitute a quorum of the Planning Commission. 3 The Act only applies to a "public agency" as defined in KRS 61.805. According to Ms. Taylor, these individuals do not fall within the parameters of KRS 61.805(2)(a)-(h). See Taylor v. Bowling Green Municipal Utilities , No. 2011-CA-00592, 2012 WL 5371994 (Ky. App. Nov. 2, 2012)(unpublished)(distinguishing Lexington Herald-Leader Co. v. Presidential Search Committee, 732 S.W.2d 884, 886 (Ky. 1987)(Presidential Search Committee created by the UK Board of Trustees, a public agency created by statute, was itself a public agency subject to provisions of the Act), in holding that group comprised of three Utility employees did not qualify as "committee" under KRS 61.805(2)(g) as the Utility's Board had "not requested the action or approved it," nor had the Board delegated authority to said employees and the "informal group" was therefore "not akin to a committee created by a formal action of a Board.").
Here, Ms. Taylor continued, "the decision-making body on whether to approve or deny the developers ['] subdivision plans is the Louisville Metro Council." Metro acknowledged the Planning Commission and the LDT Committee are "public agencies" within the meaning of KRS 61.805(2). 4 However, the fact remains that a quorum of the LDT Committee did not engage in the communications at issue nor, consequently, did it have a "meeting" within the meaning of KRS 61.805(1). Similarly, in 00-OMD-141, the Attorney General held that seven Kentucky Department of Education employees, four contractor representatives, and one employee of the Office of Education Accountability, whose discussions focused on implementation of the assessment program for elementary and secondary schools, did not fall within the parameters of KRS 61.805(2)(a) through (h). See 96-OMD-174 (holding that public officials, officers, and employees from various governmental entities which met to discuss budget appropriations did not fall within the definition of a public agency since none of those entities was represented by a quorum, and they did not exist pursuant to statute, ordinance, order, resolution, or any act of any public agency) ; 95-OMD-71 (holding that President's Cabinet and Leadership Team at Prestonsburg Community College were not public agencies within the contemplation of the Act because they were "not grounded in statute, executive order, regulation or resolution of any kind," and "could just as easily be characterized as staff meetings or administrative personnel meetings."); 94-OMD-148; 04-OMD-082. 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 Ky., Health Policy Bd., 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. As the Court in Yeoman observed, 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." 5 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; 13-OMD-086. 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). See 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) ; 16-OMD-165 (a single gathering of "a few members of the Board" and the University President was not impermissible, as that did not constitute a quorum, even assuming that such a gathering did, in fact, occur"). The record on appeal does not establish that a single "meeting" of a quorum of the members of the Planning Commission (five members) or the LDT Committee (three members), 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 of the Planning Commission or the LDT Committee occurred. Thus, KRS 61.810(2) is not implicated. See 10-OMD-210. In the absence of a quorum of the Planning Commission, or the LDT Committee 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; 17-OMD-222. Compare 13-OMD-057.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Mr. Fink stated that Mr. Brown "is or was at the time [A]ssistant Director of [Public] Works, a member of the Technical Review Committee, a member of the Land Development and Transportation Committee, the Acting County Road Engineer and a Member of the Metro Planning Commission."
2 Ms. Taylor identified the members of the Planning Commission as follows: "Vince Jarboe, Marilyn Lewis, David Tomes, Robert Peterson, Emma Smith, Jeffery Brown, Donald Robinson, Richard Carlson, Lula Howard, [and] Ruth Daniels."
3 According to Article VI, Section 4 of the Planning Commission Bylaws, "Five members of the Planning Commission shall constitute a quorum." Article VII, Section 1.A.1.a. provides that the LDT Committee "shall consist of five members of the Planning Commission or at least 50% of the currently appointed Planning Commission members." Three members of the LDT Committee shall constitute a quorum of the Committee. Article VII, Section 1.A.1.b.
4 Subsections (a)-(f) and (h) are facially inapplicable to the LDT Committee. However, KRS 61.805(2)(g) defines "public agency" to include:
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee , council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection .
Metro mistakenly read this provision to mean that only a committee, etc . "formed for the purpose of evaluating the qualifications of public agency employees" would qualify within the meaning of KRS 61.805(2)(g). However, the plain language of this definitional provision includes any committee, subcommittee, ad hoc committee, advisory committee, etc. that is "established, created, and controlled by" a public agency with two named exceptions-a committee of a hospital staff or a committee that is formed for the purpose of evaluating the qualifications of public agency employees.
5 This office has analyzed the extent to which the Open Meetings Act "reaches down through layers of administrative organization to affect the day-to-day administrative work of public employees." OAG 94-25, p. 2. In so doing, the Attorney General found guidance in published opinions from other jurisdictions with similar laws, proceeding on the following premise:
Our open meetings law is intended to provide public access to meetings of decision-making bodies, and it is not intended to provide public access to the day-to-day administrative work of a public agency. This approach "avoids the crippling consequences of placing unjustifiable impediments on achieving day-to-day administrative efficiency." Tribune Publishing Co. v. Curators of Univ. of Missouri, 661 S.W.2d 575, 585 (Mo. Ct. App. 1983).[<<5>]
OAG 94-25, p. 3 (applying a "single practical definition" for terms enumerated in KRS 61.805(2)(g) and referring to as a "committee" any "group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it); 13-OMD-187.