Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Breathitt County Fiscal Court ("Fiscal Court") violated the Open Meetings Act when the County Judge/Executive and a magistrate met privately with an employee to remove some of her job duties. For the reasons set forth below, we find that the Fiscal Court did not violate the Act in that meeting, but its failure to respond to the employee's open meetings complaint was a violation.
Crystal Deaton ("Appellant") filed an appeal with this office on June 10, 2019, claiming that the Fiscal Court violated the Act when the County Judge/Executive and a magistrate met with her privately on May 13, 2019, to notify her that the Judge/Executive was removing her duties as County Finance Officer and Health Insurance Coordinator. Appellant delivered a letter to the Breathitt County Judge/Executive on May 31, 2019, stating that the private meeting was a violation of the Open Meetings Act and that the violation could be remedied by rescinding her dismissal and addressing the issue at the next meeting of the Fiscal Court. She specifically alleged that the Act prohibits "a quorum from discussing pubic business in private or meeting in number less than a quorum for the express purpose of avoiding the open meeting requirement of the Act ." The appeal also stated that the Judge/Executive had not responded to the May 31 open meetings complaint. Breathitt County Judge/Executive Jeffrey Noble ("Judge/Executive") responded to the appeal on behalf of the Fiscal Court by letter dated June 10, 2019. The Fiscal Court cited KRS 61.810(1), which states, in pertinent part: "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[.]" The Fiscal Court stated that, by Appellant's own admission, there was no quorum present at the May 13 meeting. The Fiscal Court concluded that, since there was no quorum, the meeting with Appellant was not subject to the Act. The Fiscal Court also stated that the reassignment of some of Appellant's duties was within the Judge/Executive's authority as County Personnel Administrator pursuant to Chapter 6, Breathitt County Administrative Code. The Fiscal Court also clarified that Appellant remains employed with the Fiscal Court as "911 Coordinator."
Analysis .
Appellant argues that the meeting of May 13 violated the Act as it was a private meeting regarding public business at which there was less than a quorum of the Fiscal Court. She does not allege that there was a series of less-than-quorum meetings where the members attending collectively constituted a quorum. We find that the Fiscal Court did not violate the Act when less than a quorum of the Fiscal Court met privately, rather than publicly, with Appellant at a single meeting to remove some of her job duties and where the County Judge/Executive had the authority by virtue of his office to remove those duties.
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)]." (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."
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 Kentucky, 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. The Court in Yeoman further observed that 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 (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.
The Fiscal Court consists of the Judge/Executive and four magistrates. A quorum is the "the minimum number of members (a majority of all the members, unless otherwise specified in the governing documents) who must be present for a deliberative assembly to legally transact business." Black's Law Dictionary (11th ed. 2019). See 15-OMD-001. Thus, a single gathering of the Judge/Executive and a magistrate was not a quorum of the Fiscal Court, and was not impermissible under the Act. See KRS 61.810(1) ; 12-OMD-145 (an isolated discussion by a single board member with the superintendent would not, by itself, be subject to the Act). The Fiscal Court's uncontradicted appeal response states that removal of some of Appellant's job duties was within the Judge/Executive's authority as Personnel Administrator under Chapter 6, Breathitt County Administrative Code. Thus, the action of the Judge/Executive in the May 13 meeting was not "public business" that required discussion or action by the Fiscal Court.
The record on appeal does not establish that a single "meeting," of a quorum of the members of the Fiscal Court 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 occurred. Accordingly, KRS 61.810(2) is not implicated. See 10-OMD-210. In the absence of a quorum 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); 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); 10-OMD-210. The meeting on May 13, where the Judge/Executive and a magistrate were present, and the Judge/Executive took action he was authorized to take by virtue of his office, did not constitute a violation of the Open Meetings Act.
However, the Fiscal Court committed a violation of the Act when it failed to issue a written response to Appellant's May 31 complaint. On appeal, the Fiscal Court did not provide any explanation for its failure to issue a written response. In relevant part, KRS 61.846(1), provides:
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 ? . The response shall be issued by the presiding officer, or under his authority, and shall constitute a final agency action.
This office has consistently recognized that KRS 61.846(1) "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. As with KRS 61.880(1), the parallel provision of the Open Records Act, "[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. This holding applies with equal force to parallel requirements of the Open Meetings Act. See 13-OMD-158. Simply put, KRS 61.846(1) requires a public agency to issue a written response within three business days of receiving a complaint, and the Fiscal Court's failure to do so violated the Act.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.