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 Glasgow Electric Plant Board ("Board") violated the Open Meetings Act, specifically KRS 61.846(1), in failing to issue a timely written response to Glasgow Daily Times reporter Melinda Overstreet's February 18, 2019, complaint. Quoting KRS 61.810(1) and (2), Ms. Overstreet alleged that a quorum of the Board violated the Act in reaching "a consensus regarding termination and replacement of" Board Superintendent Billy Ray, and Board legal counsel H. Jefferson Herbert, "outside of a regularly scheduled or [special] meeting of the [B]oard, as well as two other agenda items set for the Feb. 19 special meeting. " 1 In addition, she "believe[d] that an email from D.T. Froedge distributed among [B]oard members, the [S]uperintendent and [B]oard counsel" on February 13, 2019, proposing the Board should "notify the bond company to cancel bond sales, invited a potential open meetings law violation . . . that should be addressed to prevent such situations in the future. 2 It also helps confirm the belief the earlier violation(s) occurred." Notwithstanding the convoluted procedural history of this appeal, and the written response that Mr. Froedge's legal counsel provided on his behalf, this office finds the Board violated KRS 61.846(1) because the presiding officer did not issue a written response on behalf of the Board nor did anyone "under this authority[.]" However, the only unrefuted evidence presented on appeal does not conclusively establish that all of the necessary elements are present as required to find the Board violated KRS 61.810(1) or (2). Although Ms. Overstreet's complaint had a reasonable basis, the fact remains that her allegations require a degree of speculation or inference that KRS 61.846(2) simply does not authorize.
The parties do not disagree regarding the procedural history of this matter. Instead, the dispute centers on the legal implications of the salient facts described in the complaint. Those facts include that the Board is comprised of five members and three members constitute a quorum, 3 and several assertions regarding various e-mail communications on multiple dates that Ms. Overstreet alleges constituted "meeting[s]" of the Board within the meaning of KRS 61.805(1), that violated KRS 61.810(1), or a series of less than quorum meetings that violated KRS 61.810(2). 4
In accordance with KRS 61.846(1), Ms. Overstreet proposed seven remedies to address the alleged violations, including that (then) Chairman Harned immediately distribute her complaint to all members of the Board, Superintendent Ray, and Board counsel, and modify the agenda for the February 19 meeting to include "allegation from news outlet of open meetings violation(s) and proposed remedies." 5 The Board implemented only the first two of her seven proposed remedies. Conversely, she asked the Board to remove the four agenda items that she believed were the product of the "illegal consensus-gathering process." Whether or not the Board conceded the violation(s), Ms. Overstreet proposed that all members receive training on the Kentucky Open Meetings Act and Open Records Act no later than 60 days from the date of her complaint.
By letter directed to Ms. Overstreet on February 20, 2019, attorney Ronald L. Hampton responded on behalf of Mr. Froedge only, who denied "in whole" the allegations that any of his conduct violated the Act. Acknowledging that Ms. Overstreet directed her complaint to (then) Chairman Harned (per KRS 61.846(1)), the presiding officer of the Board, Mr. Hampton advised that Mr. Froedge "felt compelled to file a response because he was singled out in your complaint." Mr. Hampton stated that Ms. Overstreet made "various assumptions that decisions had already been made prior to the February 19, 2019, meeting and that commitments or promises had been made to vote a certain way had been made. The results of the meeting itself are undeniable proof that your assumption regarding the topics discussed in your complaint were incorrect." 6 He further noted that Ms. Overstreet seemingly acknowledged there was no violation based upon KRS 61.810(1), instead referencing KRS 61.810(2) "regarding separate telephonic communication between Mr. Froedge and Mr. Witcher and Mr. Froedge and Mr. Biggers." However, discussions between members for the purpose of educating the members on specific issues, he stated, are permissible. See KRS 61.810(2).
Pursuant to KRS 61.846(1), "The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays , after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision . . . . " (Emphasis added). The response by the agency " shall be issued by the presiding officer, or under his authority , and shall constitute final agency action." (Emphasis added). In construing KRS 61.846(1), this office has consistently explained that it "does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period." 03-OMD-116, p. 2; 13-OMD-158; 18-OMD-145. As the Kentucky Court of Appeals noted in reference to parallel requirements of the Open Records Act codified at KRS 61.880(1), "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029, p. 4. This holding applies with equal force to KRS 61.846(1). See 13-OMD-005.
During the February 19 Board meeting, when the agenda item relating to Ms. Overstreet's complaint arose, Mr. Froedge made a motion for the discussion to be "laid on the table," implying that it could be revisited later in the meeting. The motion passed, but no further discussion followed. On February 21, Mr. Hampton issued a response on behalf of Mr. Froedge only . 7 Because a meeting of the full Board could not be held prior to expiration of the statutory period for a response under KRS 61.846(1), Mr. Herbert proposed that Ms. Overstreet agree to delay forwarding her appeal per KRS 61.846(2) until three days following the next meeting of the Board (March 26). She agreed with the understanding that discussion of her complaint would be listed on the March 26th agenda, and the discussion would occur. Mr. Taylor moved for the Board to acknowledge the violation(s) and implement all of the proposed remedies; Mr. Harned seconded the motion. Mr. Froedge presented a "substitute," i.e., a pre-typed motion for the Board to forward the complaint, along with any responses from individual Board members, directly to the Attorney General for a ruling as to whether any violation occurred. 8 His motion passed. The Board did not issue a written response to Ms. Overstreet's complaint nor did the Board opt to issue any response to her appeal.
"KRS 61.846(1) is clear on its face and it does not provide for extensions of time in which to respond." 11-OMD-023, pp. 8-9. See 10-OMD-171; 11-OMD-010; 11-OMD-019; 13-OMD-049; 18-OMD-145. A complainant may agree to a reasonable delay, "but failing to issue a final written response within three business days of receiving a complaint, regardless of the reason, constitutes a violation of KRS 61.846(1)." 11-OMD-023, p. 9. See 10-OMD-017; 11-OMD-010; 13-OMD-049; 13-OMD-158. Our analysis now focuses on whether the facts presented validate Ms. Overstreet's allegations regarding KRS 61.810(1) and (2).
The fundamental mandate of the Act is codified at KRS 61.810(1), pursuant to which "[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)]."." (Emphasis added.) This provision reflects the legislative statement of policy, codified at KRS 61.800, declaring "the formation of public policy is public business and shall not be conducted in secret . . . ." 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. " Thus, in a series of decisions dating back to 1978 this office has recognized that even a casual gathering of a quorum of the members of a public agency triggers the requirements of the Open Meetings Act if public business is discussed or action is taken. 01-OMD-30 (gathering of a quorum of the agency held for the purpose of discussing public business violated the Act even though it was informational and informal)(citing OAG 78-411). Compare OAG 78-634; 00-OMD-147 (no violation of the Act notwithstanding the fact that a quorum of the agency met at a local restaurant after its meeting, as the members provided sworn statements denying that public business was discussed and no evidence was showed otherwise).
However, 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; 13-OMD-142; 16-OMD-162. 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."
"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 v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998). 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. 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) ; 18-ORD-213. "The mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act." Yeoman at 474. For a meeting to take place under 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 "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 (City Manager contacting city commissioners to confirm they did not want him to place an item on the agenda was not a discussion of "public business" ); 13-OMD-086 (Mere discussion of what items should appear on the meeting agenda is not a substantive discussion of the issues, and therefore is not a discussion of public business that is subject to requirements of the Act. Compare 14-OMD-183 (noting that if a quorum of the members of the agency discussed the budget in a telephonic series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constituted at least a quorum, for example, then KRS 61.810(2) would have been violated if the meetings were held for the purpose of avoiding the requirements of KRS 61.810(1) and recognizing that discussion of whether to give agency personnel a salary increase of 3% or 5% was unquestionably "public business" ).
"In the interest of clarity, this office notes that if even a single "meeting" as defined at KRS 61.805(1) occurred at which a quorum of the members of the Board engaged in a discussion of "public business, " and that meeting was not on the regular meeting schedule adopted under KRS 61.820, the Board was required to hold that meeting in a public forum under KRS 61.810(1) and to comply with other provisions of the Act, such as KRS 61.823 (notice requirements for special meetings). 9 16-OMD-065, p. 4 (emphasis added); 16-OMD-190 (" If a quorum of the City Council engaged in any discussion of 'the various alternatives to a given issue about which the [City Council] has the option to take action' following the adjournment of its . . . meeting, any such discussion 'clearly contravened the provisions of the Act. However, the record before us does not conclusively support or refute this claim.'" (Citation omitted). See 05-OMD-096 (Attorney General is "not empowered to engage in independent fact finding or to consider information that does not appear in the record," and the conflicting statements of record preclude this office from concluding that a violation was committed).
Ms. Overstreet's inference or assumption that a meeting or meetings of a quorum of the members of the Board preceded Mr. Froedge's February 7 e-mail was arguably reasonable when viewed in context. However, the fact remains that her complaint was based on conjecture, which, regardless of how reasonable it may be, does not constitute proof. The record on appeal is devoid of any objective proof that a quorum of the members of the Board was present at a single meeting from which the public was excluded, or that the members engaged in a series of less than quorum discussions of public business, whether by telephone, in person or via e-mail, where the members participating collectively constituted at least a quorum of the members of the agency. See 14-OMD-183. Former Board Chairman Harned and Mr. Taylor share her perception of the circumstances, which is persuasive but is not determinative. In light of Mr. Froedge's conflicting statement and the denial by Mr. Biggers that he participated in any discussion of public business with Mr. Froedge, as well as the lack of any objective proof to refute their statements, the Attorney General is unable to find that a violation of KRS 61.810(1) or (2) was committed. See 09-OMD-014; 11-OMD-006; 12-OMD-067; 13-OMD-142; 14-OMD-079.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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. Froedge's February 7, 2019, e-mail stated:
The new members of the board [Marlin Witcher and Mark Biggers] and I request the following items be added to the planned Board meeting on [Feb. 19,] 2019, or the regular scheduled meeting for February[:]
1. Replacement of the [B]oard [C]hairman of [G]EPB[;]
2. Election [of] a [secretary] & treasurer of the GEPB[;]
3. Termination and replacement of the legal [counsel] for the GEPB[;]
4. Termination and replacement of the Superintendent of [GEPB.]
"Since a mere discussion of what items should appear on the meeting agenda is not a substantive discussion of the issues," the Attorney General has recognized, "it would not constitute a discussion of public business and therefore would not trigger the requirements of KRS 61.810(1)."<<1> 13-OMD-086, p. 3; 93-OMD-20; 13-OMD-142; 14-OMD-240; 17-OMD-208; 19-OMD-070. Here, the complaint focuses on the discussions that Ms. Overstreet assumes preceded the subject e-mail rather than inclusion of a request to add items to the agenda.
2 He stated, "I propose therefore that we notify the bond company to cancel the refinancing, and bond sale until after EPB has selected and put in place a new Superintendent that will satisfy the security and stability requirements of the bond purchasers."
3 In relevant part, Mr. Herbert advised this office by letter dated March 29, 2019, "that the present members of the [Board], all of whom were members during the events referenced in the documents attached, are D.T. Froedge, Jeff Harned, John M. ["Tag"] Taylor, III, Marlin Witcher, and Mark Biggers." This acknowledgement renders any discussion regarding the official status of Mr. Witcher and Mr. Biggers unnecessary.
4 In addressing the February 13 e-mail, Ms. Overstreet argued that Mr. Froedge's proposal "clearly indicates a foregone conclusion." Although he does not "come straight out and ask for the opinions of his fellow [B]oard members," she asserted, "he has proposed a solution for their collective consideration, and I believe the implication of an invitation to share thoughts on this proposed solution is implicit. Such proposals and any subsequent feedback should take place in an open meeting." This office agrees. See 14-OMD-015.
Based upon the records that she had received in response to her KRS 61.880(1) request, however, "none of the other members discussed Froedge's proposal via correspondence, [so] it may not be that Froedge's email in an[d] of itself is a violation, but it appears as an attempt at one, and it clearly had the potential to initiate one." (Emphasis added.) Her assertion is correct on both counts. As in 14-OMD-015, the only responses the subject e-mail elicited did not contain any discussion of public business. This office again declines "to assign error to the responding Board members since their role was largely one of passive recipient of unsolicited email." Id. , p. 3. Regardless of Mr. Froedge's intentions, however, the "attempt to draw a quorum of the members of the Board into a discussion of [public business] was improper." Id.
5 Because the role of this office in adjudicating a dispute arising under the Act is limited to "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," this office generally declines to comment on the remedies proposed or implemented. 08-OMD-164, p. 2; 06-ORD-035; 11-OMD-162; 15-OMD-033. Compare KRS 61.846(3) (requiring the public agency to agree to remedy the alleged violation and enabling the individual to appeal to if he believes the efforts of the agency in this regard are inadequate). This office "is not empowered to declare void action taken at an illegal meeting, impose penalties for violations of the Act, or compel an agency to implement the remedial measures proposed." 08-OMD-005, p. 9. Nor is the Attorney General able to conclusively resolve factual disputes when presented with conflicting narratives. See 05-OMD-096; 07-OMD-253; 08-OMD-234; 09-OMD-014.
6 This office respectfully disagrees with Mr. Hampton's position regarding the implications of how the members ultimately voted. The relevant inquiry, assuming there was objective proof that a meeting(s) occurred prior to either of the subject e-mails in February, is whether they possessed the requisite intent at that time, not during the Board meeting.
7 Although individual members of a public agency such as the Board may commit actions that give rise to a violation of the Act, "the violation is attributed to the public agency itself, not to the individual members. Individual members, regardless of the extent of their involvement in causing the public agency to violate the Open Meetings Act, have no legal liability under the Act." Consequently, if the Attorney General issues a decision finding against the public agency, the decision "is not an adverse ruling that affects the legal rights or privileges of [the agency members] in their individual capacities." Councilmember Stuart Miles; Councilmember Susan Nicholson; Councilmember Luke Schmidt; and Councilmember Jeffery Stovall v. John P. Simpson (granting respondent's motion to dismiss for lack of standing), Civil Action No. 18-CI-5212 (Jefferson Cir. Ct., 2018).
8 KRS 15.020 and 15.025 govern the issuance of advisory opinions, which is what Mr. Herbert essentially requested on behalf of the Board in his March 29, 2019, letter. An opinion "is highly persuasive, but not binding on the recipient." York v. Commonwealth, 815 S.W.2d 415, 417 (Ky. App. 1991)(citation omitted). Open Records Decisions and Open Meetings Decisions, conversely, have the "force and effect of law" under KRS 61.880(5)(a) and 61.846(4)(b), respectively. Given our adjudicatory role in resolving disputes arising under KRS 61.880(2) and 61.846(2), the same considerations that prevent courts from rendering advisory opinions also generally prevent this office from doing so. Accordingly, this office declined Mr. Herbert's request. See 07-ORD-110; 14-ORD-040.
9 In contrast to KRS 61.823, KRS 61.820 does not require agencies to prepare an agenda for a regular meeting. If a public agency elects to prepare one, "it is not bound to observe the standard of fair notice to the public of particular topics to be discussed or acted upon that was recently articulated [in 01-OMD-175]." 01-OMD-181, p. 5 (emphasis added); 01-OMD-175. In so holding, this office did not "mean to suggest that public agencies may prepare agendas for regular meetings that are consciously misleading or entirely inaccurate." Id. Rather, because no agenda requirements are statutorily imposed, "public agencies cannot be held to the same high standard in preparing their agendas for these meetings." Id.