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 Bell County Board of Education ("Board") violated the Open Meetings Act specifically KRS 61.823(3), prior to its March 5, 2019, special meeting. This office finds the Board did not violate the provisions of the Act.
Superintendent Yvonne Gilliam and the five Board members discussed whether they preferred to call another special meeting for the purpose of discussing any information that she learned from the attorney representing the Board in the ongoing contract dispute with the Pineville Independent Board of Education, or if they preferred for Superintendent Gilliam to contact each member individually. The members allegedly voiced their preference to have Superintendent Gilliam notify them individually. Citing the definitions of "Meeting" and "Action taken" found at KRS 61.805(1) and (3), respectively, Mr. Smith alleged the Superintendent's discussion with the Board regarding the preferred method of relaying the information that she learned from the attorney was illegal because KRS 61.823(3) states that "'[d]iscussions and actions at the meeting shall be limited to items listed on the agenda in the notice'" and the discussion was not listed on the agenda for the March 5 special meeting.
In his March 6, 2019, written complaint, directed to Chairperson Eulene Brock (and copied to Superintendent Gilliam) per KRS 61.846(1), Mr. Smith proposed that Chairperson Brock and Superintendent Gilliam should acknowledge this violation during the Board's next regular meeting, and provide a public apology that should appear in the minutes of the meeting, to remedy the violation. He further proposed that Chairperson Brock and Superintendent Gilliam attend training on the procedural requirements of the Open Meetings Act in order to prevent future violations of this nature from being committed.
By letter directed to Mr. Smith on March 20, 2019, Shea Dunn Yoakum, Board Attorney, noted that his complaint was received in her office on March 13, 2019. 1 She further confirmed that a few minutes prior to its March 5, 2019, special meeting, the members of the Board "were seated in their respective chairs, along with the Superintendent and Board secretary. At that time, the Superintendent asked if the board members wanted her to schedule another [special meeting] or contact each of them individually" to relay information that she obtained from the attorney that is representing the Board in the contract dispute with the Pineville Board. Ms. Yoakum emphasized that, "At no time did the Superintendent go on to discuss the information she had obtained and there was no collective decision or vote by the Board on her inquiry." In fact, several Board members were discussing other items amongst themselves, and one member indicated that he was unaware of what Superintendent Gilliam said.
Citing 13-OMD-086, Ms. Yoakum stated the Attorney General has recognized "there must be more than the mere discussion of adding something to an agenda for a future board meeting in order to violate KRS 61.810." Accordingly, the question by Superintendent Gilliam as to whether it was necessary to call a special meeting or preferable to disseminate information to each member individually was not a substantive discussion of any issue, Ms. Yoakum claimed, and therefore did not constitute a discussion of "public business" that violated KRS 61.810(1).
In his March 25, 2019, appeal, Mr. Smith asserted that Superintendent Gilliam and the Board members reached a consensus that she would contact each member by telephone. Quoting KRS 61.805(1) and (3), he alleged that in holding this "casual gathering" in anticipation of its March 5 special meeting, and "making a collective decision" regarding the method of relaying the information, the Board violated the Act. He also claimed the Board violated KRS 61.823(3) in discussing public business that was not identified on the agenda for the special meeting.
In responding to Mr. Smith's appeal, Ms. Yoakum reiterated that Superintendent Gilliam did not discuss information regarding the Pineville contract dispute; nor did the Board reach any consensus regarding her inquiry. Rather, Chairperson Brock indicated that several discussions were taking place simultaneously; the Board members did not vote on the question, most did not even respond, and no action was taken. Superintendent Gilliam ended the conversation by stating that she would just call each member individually, and the Board then held the special meeting as planned. Quoting 13-OMD-086 (citing Yeoman v. Commonwealth of Ky., Health Policy Bd., 983 S.W.2d 459 (Ky. 1998)), Ms. Yoakum stated the conversation that Superintendent Gilliam initiated was not a substantive discussion of any issue. Accordingly, "it did not constitute a discussion of public business by the Board, as defined by KRS 61.805 and Yeoman ; there was no action taken by the Board, and as such there was no violation of KRS 61.810 by the Board." When viewed in light of 13-OMD-086, and the authorities upon which that decision was premised, the record in this appeal does not validate Mr. Smith's allegations.
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); 13-OMD-142. 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)-(n)]."
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, "The 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, supra, at 474.
Violation of the 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." 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; 18-OMD-213.
In 00-OMD-171, this office decided whether the Paducah Board of Commissioners violated the Open Meetings Act when the City Manager rejected a tentative proposal from Players Island Casino to donate a waterfront barge facility for the Paducah Riverfront. This office held that, "Inasmuch as discretion rested with the city manager to make the decision regarding the acquisition of the barge, his communications with the commissioners concerning whether to pursue the offer did not involve the discussion of public business. " Id. , p. 6. The Board did not have the option to act on the offer, and merely confirmed his rejection of the gift and his decision not to include it on the agenda for an upcoming meeting. Id. Because the subject matter discussed was not "public business" within the definition set forth in Yeoman , this office found "the discussions could not have been 'held for the purpose of avoiding the requirements' of the Open Meetings Act [,]" and the Paducah Board of Commissioners therefore did not violate KRS 61.810(2) or any other provision of the Act. Id.
This office cited 00-OMD-171 with approval in 13-OMD-086. There, this office determined whether telephonic discussions of what items a board of education should include on a special meeting agenda violated the Act. "Since a mere discussion of what items should appear on the meeting agenda is not a substantive discussion of the issues," the Attorney General stated, "it would not constitute a discussion of public business and therefore would not trigger the requirements of KRS 61.810(1)." 2 13-OMD-086, p. 3; 93-OMD-20 (agency did not violate the Act when a public official solicited comments and suggestions from individual agency members concerning a proposed ordinance, but "no final decisions or commitments were made by anyone . . . relative to the ordinance prior to its consideration by the [agency] at its [scheduled] meeting. . . . "); 13-OMD-142 (the only two e-mails that were directed to all members of the agency did not contain any substantive discussion and their purpose "was to 'inform' or education the members" of the agency, which is entirely permissible); 13-OMD-118 (discussion of whether to reschedule a special meeting for the next day did not amount to a "'substantive discussion' of public business that would implicate the Act) . See 17-OMD-208 (holding that conversations between the Mayor and the commissioners were not held for the purpose of discussing various alternatives as to how the Commission should honor the former mayor, but rather "Mr. Parrish informed them of his decision and determined that none of the members were opposed to his plan"); 14-OMD-240.
This line of authority is controlling on the facts presented here. Discussion of whether to receive an update from Superintendent Gilliam regarding the ongoing contract dispute with Pineville Independent Schools via telephone or during a special meeting "did not constitute a discussion of public business and therefore would not trigger the requirements of KRS 61.810(1)." 13-OMD-086, p. 3. See 14-OMD-240, p. 3, n. 2 ("[E]ven assuming that Board members discussed whether to hold a special meeting prior to [its] presiding officer, actually calling a meeting, that did not violate the Act so long as no action was taken and no substantive discussion of public business occurred."); 13-OMD-142. With the exception of its failure to comply with KRS 61.846(1), the Board did not violate the provisions of the Open Meetings Act relative to its March 5 special meeting.
Either party may appeal this decision 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.
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