Opinion
Opinion By: Andy BeshearAttorney General;J. Marcus JonesAssistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Calloway County Public Library Board of Trustees ("Board") violated the Open Meetings Act. We find that the Board violated KRS 61.823(3) when it used the acronym "Strategic Plan/ S.W.O.T." to describe a special meeting agenda item, thereby failing to give fair notice of the particular topics to be discussed or acted upon during the special meeting. The board did not violate the KRS 61.810(2) when members conducted a series of tours of a potential purchase property.
Background
On November 30, 2018, Nancy Mieure (Appellant) submitted an open meetings complaint raising two alleged violations of the Open Meetings Act. Regarding the first allegation, Appellant states that the board conducted a special meeting on October 15, 2018. The agenda for the special meeting states that the only item for the meeting was "Strategic Plan/ S.W.O.T." Appellant explains that "S.W.O.T." is an acronym used by the board for strengths, weaknesses, opportunities and threats. Appellant states that a printed proposal titled "H.A.L.T. Have Another Look Together" was distributed at the meeting. The H.A.L.T. proposal was written by board member Mark Kennedy to analyze and compare three library expansion alternatives. Appellant attached a copy of the H.A.L.T. proposal to her appeal.
Appellant describes the alleged violation as follows:
As I attended this meeting, I can confirm Kennedy did not distribute his proposal during the "opportunities" analysis portion. He distributed his materials at the end of the meeting. The purpose of the meeting was for the Trustees to give input on the Strengths, Weaknesses, Opportunities and Threats of the Library, regarding development of a strategic plan. Distributing a document detailing his ideas was not listed on the agenda, nor did it have anything to do with the meeting itself.
The board responded to Appellant on November 2, 2018. In its response, the board argues that the "proposal was relevant to the discussion taking place during the examination of the 'opportunities' section of the SWOT analysis being conducted that evening." The board further states that "members present did not discuss the proposal at the meeting, no time was spent looking over it or reading it, and no action was taken regarding the proposal."
Regarding the second allegation, Appellant states that board members conducted tours of a former Regions Bank building. Appellant argues that three members conducted the tours: Mr. Kennedy; Dr. Winfield Rose; and Joe Walker. Appellant states that the board members were acting "as trustees," and points to a press release issued by Mr. Kennedy as evidence. Appellant included the press release with the appeal, which states:
The tours will be conducted on Thursday, November 1, beginning at 3:30 in the afternoon every half-hour until 6:30 PM. Mark Kennedy and Dr. Rose will conduct the tours from 3:30 -- 5:00, with Kennedy and Joe Walker from 5:00 -- 6:30 in order to conform with Open Meeting Laws.
The press release states that the tours are intended "to educate all to the possibility of considering this downtown anchor building as a potential site for library expansion." Appellant argues, "[w]hile they may not have met as a group during the 'tours', I assert that they had discussions among themselves to plan the event; did in fact discuss public business; and therefore violated KRS 61.810(2)."
In its response, the board states that at "no point did [the members] meet as a group to discuss the possible purchase and renovation of the former Regions Bank building." The board also states "Dr. Winfield Rose and Mr. Mark Kennedy were the only two trustees in attendance during the tours. Since there were only two members present, a quorum was not met; as a result, there was no violation of the [Act] during these tours."
Analysis
The Board violated KRS 61.823(3) in using the acronym "Strategic Plan/ S.W.O.T." to describe the special meeting agenda item . KRS 61.823(3) provides that "[t]he public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice. " This office has held that "the language of KRS 61.823(3), coupled with the statement of legislative policy codified at KRS 61.800, and the Kentucky Supreme Court's declaration that '[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions' mandate special meetings agendas that give fair notice of the particular topics to be discussed or acted upon." 01-OMD-175 (citing
Floyd Cty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997)). Thus, we concluded, "the practice of including open-ended agenda items like old and new business, or open to council or floor, is inconsistent with. . .the goal of maximizing notice to the public." Id. ; See 13-OMD-005 (holding that agenda items for "projects" and "personnel" were not sufficiently specific to satisfy the requirements of KRS 61.823(3) ). Further, "such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting. " Id. , p. 5.
The vague description "Strategic Plan/ S.W.O.T." did not give the public fair notice that the board intended to discuss the library expansion "opportunities" at the special meeting. We understand that the acronym "S.W.O.T." is commonly used among members of the board and the term has meaning to citizens particularly interested in and involved with library issues. However, KRS 61.823(3) requires fair notice to the general public. The public could not reasonably impute from the acronym "S.W.O.T." that the board would discuss library expansion opportunities and review proposals related to that expansion. Therefore, the Board violated KRS 61.823(3) by using the acronym "Strategic Plan/ S.W.O.T." in the special meeting agenda. 1
The Board did not violate the Act when members conducted tours of a potential purchase property . The Open Meetings Act "prohibits . . . meeting in number less than a quorum for the express purpose of avoiding the open meeting requirement of the Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Bd., 983 S.W.2d 459, 474 (Ky. 1998). We find that, in this case, the participating board members did not violate KRS 61.810(2) because their express purpose was not to avoid the requirements of the Act, but to educate the public and receive public opinions on an issue before the board.
The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), states 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. . ..
Addressing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, KRS 61.810(2) provides:
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. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
We have found that KRS 61.810(2) "represents an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act. " 94-OMD-106; see also 02-OMD-153.
In applying 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 meeting requirement of the Act." Yeoman, supra, at 474. We have found that "the three elements of the offense described in KRS 61.810(2) are as follows: (1) a series of less than quorum meetings; (2) the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency; and (3) the meetings are held for the purpose of avoiding the requirements of the Open Meetings Act. " 07-OMD-041, p. 6, n. 3.
As to the first element, we find that the members discussed public business during the tours. The record shows that board members discussed the proposed purchase of the bank property with the public. The press release shows that the tour would include not only a discussion of the location, but also discussion of the purchase cost and renovations to make the site suitable for library use. "Public business" is defined as "the discussion of the various alternatives to a given issue about which the board has the option to take action." Yeoman, supra, at 474. Accordingly, the record establishes the first element of a violation of KRS 61.810(2).
However, there is insufficient evidence that a quorum of members participated in the bank tours. Three members of the board constitutes a quorum, and Appellant provided a news release stating that three members would conduct the tours over the course of three hours. However, the press release only anticipated the attendance of three members, and Appellant provided no witnesses. The board claimed in its response that only Dr. Rose and Mr. Kennedy actually attended the tour event. As such, there is insufficient evidence to establish the second element of a KRS 61.810(2) violation.
There is also insufficient evidence to establish the third element of a KRS 61.810(2) violation, which requires evidence that the tours were "for the express purpose of avoiding the open meeting requirement of the Act." Yeoman, supra, at 474. The press release stated that the tours were intended to educate the public on the bank purchase option. Further, the release states that board members could attend the tours to be educated on the bank purchase option. As KRS 61.810(2) provides, "[n]othing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues." There is insufficient evidence in the record to establish the third element of a KRS 61.810(2) violation. Therefore, we find the board members did not violate the Act by conducting the series of public tours.
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 Having found that the special meeting agenda did not give fair notice to the public that "opportunities" were a particular topic to be discussed or acted upon at the special meeting, it is not necessary to address the proper characterization of the H.A.L.T. proposal and whether the board erred in separately listing the H.A.L.T. proposal on the special meeting agenda. Therefore, we decline to address this issue.