Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : The Fire Chiefs of the Anchorage Middletown Fire & Emergency Medical Services ("AMFEMS"), Eastwood Fire Protection District ("EFPD"), Harrods Creek Fire Protection District ("HFPD"), and Worthington Fire Protection District ("WFPD")(collectively as "Fire Districts") did not violate the Open Meetings Act ("Act") by meeting prior to the creation of the Merger Steering Committee ("Committee"). The Fire Chief violated the Act by holding a public meeting with a public relations firm. The Committee violated KRS 61.820(2) by meeting before making its regular schedule of meetings publicly available; and the Committee conducted a May 6, 2019 special meeting in violation of KRS 61.823. AMFEMS and HFPD April 17, 2019 special meeting agendas failed to comply with KRS 61.823(3).
Open Meetings Decision
The question presented in this appeal is whether the Anchorage Middletown Fire & Emergency Medical Services ("AMFEMS"), Eastwood Fire Protection District ("EFPD"), Harrods Creek Fire Protection District ("HFPD"), Worthington Fire Protection District ("WFPD")(collectively as "Fire Districts"), the Merger Steering Committee ("Committee") created by the Fire Districts, and the Fire District's Chiefs violated the Open Meetings Act ("Act"). We find that the Fire Chiefs did not violate the Act by meeting prior to the creation of the Committee, but became a public agency under KRS 61.805(2) and subsequently met with a public relations firm in violation of the Act. The Committee violated KRS 61.820(2) by meeting before making its regular schedule of meetings publicly available, and violated KRS 61.823 by failing to adhere to the requirements for conducting a special meeting. AMFEMS and HFPD special meeting agendas failed to comply with the requirements of KRS 61.823(3).
Background
This appeal relates to events leading to the proposed merger of the four Fire Districts. The meeting minutes in the record show that at the request of their respective Fire District Boards of Trustees ("Boards"), the Fire District Chiefs met regularly before the establishment of the Committee. The AMFEMS December 17, 2018 minutes state that the Chiefs "continue to meet regularly and are educating their Boards on the challenges and benefits of consolidation." The HCFD October 15, 2018 minutes state that the Board requested its Chief to "provide a time table and definitive information on the process so the Board can fully review any future proposal." The October 17, 2018 WFPD minutes show its Fire Chief reporting on the potential benefits and risks of a merger to his Board. The EFPD December 13, 2018 minutes state that its Chief presented a PowerPoint presentation detailing risks and benefits of a potential merger. On December 19, 2018, the WFPD Chief presented the PowerPoint presentation to his Board. A January 23, 2019 email from the AMFEMS Fire Chief to the other three Fire Chiefs indicates that the Fire Chiefs mutually agreed on a date and location for the first Committee meeting.
The Boards of Trustees of the Fire Districts ("Boards") established the Committee by separate resolutions adopted in open session of each respective fire district. The resolutions created an eight-member Committee composed of each Fire District Chief and one member of each respective Board, for the purposes of developing a joint merger plan, drafting an organizational chart for a potential unified fire district, and establishing "Public Relations Plans/Community Engagement." Each resolution stated that the Fire District had evaluated a potential merger pursuant to authority granted under KRS 75.020(4), 1and listed benefits of a merger as pre-determined by each Board. 2None of the resolutions established a regular schedule of meetings for the Committee.
On January 28, 2019, the first Committee meeting took place at AMFEMS. The minutes show that the members voted to adopt a regular schedule of meetings, and made the schedule publicly available after the meeting. The minutes also show that the Committee determined that each "department should deliver the same message/same talking points[.]" The members agreed that a meeting with the Run/Switch public relations firm would be a positive step toward that goal. The Committee members agreed that the four Fire Chiefs should meet with Run/Switch and "would be the best point of contact." The Run/Switch meeting took place on January 31, 2019. The February 11, 2019 minutes show that the Fire Chiefs developed "internal FAQs talking points," and "PR documents...intended to address the facts and myth." The Committee agreed that "[a]ny questions not included on the sheet should be directed to their chiefs," and "[a]ll media inquiries should be directed to the Chiefs." Committee minutes show that the Fire Chiefs worked individually on merger issues, but continued to work as a group on public relations issues.
On April 17, 2019, the Fire Districts and the Committee held special meetings relating to the planned merger. EFPD issued a special meeting notice and agenda stating that the purpose of its special meeting was "introduction and consideration of a merger agreement with neighboring districts[.]" The Fire Districts voted to approve Joint Merger Petitions and Plans of Merger at each special meeting.
On May 28, 2019, Douglas L. McSwain, Attorney for the City of Glenview ("Appellant") filed an Open Meetings Act ("Act") complaint and open records request with the Fire Districts, and on June 4, 2019, supplemented the complaint with additional issues. On June 11, 2019, the Fire Districts responded without conceding any of the alleged violations. On July 03, 2019, Appellant filed a complaint with this office. The Fire Districts responded jointly on August 8, 2019.
On appeal, Appellant argued that the meetings of the four Fire Chiefs occurring before the first Committee meeting were public meetings that violated the Act. Appellant also argued that the Fire Chiefs' meeting with Run/Switch was a public meeting held in violation of the Act. Regarding the meetings before the first Committee meeting, the Fire Districts argued that the Fire Chiefs were merely employees of the Boards performing administrative functions "in the ordinary course of their employment duties" and therefore were not required to comply with the Act. The Fire Districts argued that the meeting with Run/Switch was not a public meeting because "no quorum of the members of any public agency" was present.
Appellant argued that the first Committee meeting was a special meeting held in violation of the Act. Appellant argued that the initial meeting of any public agency is a special meeting, and the Committee failed to follow the procedural requirements for special meetings. The Fire Districts do not concede that the Committee is a "public agency" subject to the Act. Nevertheless, the Fire Districts argued that the Committee adopted a regular schedule of meetings during its first meeting, and "was in no way created in secret, and its meetings were never conducted in secret."
Appellant argued that the Committee failed to comply with the special meeting notice requirements with respect to its May 6, 2019 meeting. On that date, the Committee changed the location of its regularly scheduled meeting from AMFEMS to a WFPD fire station. The Fire Districts argued that the May 6, 2019 meeting was not a special meeting, and that the meeting location was changed "to coincide with an informational meeting about the merger that the Fire Districts invited public officials to attend." The Fire Districts argued that the date and time of the meeting was not changed, and the Act does not require scheduling a special meeting for a mere change of locations.
Appellant argued that two Fire Districts failed to follow the agenda requirements for their April 17, 2019 special meetings. Specifically, Appellant argued that HCFD and AMFEMS failed to "include an agenda for the upcoming meeting." Alternatively, Appellant argued that the agendas insufficiently informed the public as to the issues to be considered. The Fire Districts asserted that the agendas complied with the requirements of the Act and provided copies for our review. The HFPD notice lists as agenda items "Merger Steering Committee update," and "Resolution on a plan of merger." The AMFEMS notice does not include an agenda for the meeting, but the Fire Districts argued the agenda is adequate because it states "regular monthly meeting" as the item.
Analysis
The Fire Chiefs' Activities Prior to the First Committee Meeting Were Not Subject to the Act's Requirements . The Fire Chiefs met regularly before the creation of the Committee to discuss and plan the merger of the Fire Districts. Pursuant to KRS 75.040, merger activities are public business under the jurisdiction of the Boards. 3However, no evidence exists in the record that the Boards formally organized the Fire Chiefs into a committee. The Boards did not assign, by formal action, the four Fire Chiefs to act on their behalf with respect to merger activities. Rather, the record establishes that each Chief worked at the direction of his respective Board to educate and inform on the risks and benefits of a potential merger. The Chiefs were only authorized to report and educate, and they were not delegated any of the Board's decision-making authority. As such, the Fire Chiefs' activities prior to the first Committee meeting are not subject to the requirements of the Act.
In OAG 94-25, 4we provided guidelines for when an entity qualifies as a "public agency." We advised that "the phrase 'board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency' refers to . . . 'a 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.'" Id. This office has recognized that "[o]ur 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." Id. , p. 3. This approach "avoids the crippling consequences of placing unjustifiable impediments on achieving day-to-day administrative efficiency." Id. ( quoting
Tribune Publishing Co. v. Curators of Univ. of Missouri , 661 S.W.2d 575, 585 (Mo.App. 1983)); 04-OMD-082. Accordingly, the Fire Chiefs did not violate the Act in meetings prior to January 28.
The Merger Steering Committee is a Public Agency Subject to the Requirements of the Act . The Committee is a public agency subject to the Open Meetings Act. KRS 61.805(2) defines "public agency" as: "(a) every state or local government board, commission, and authority;" including "(f) any entity when the majority of its governing body is appointed by a 'public agency' as defined in paragraph (a)...(g) of this section, a member or employee of a 'public agency,' a state or local officer, or any combination thereof;" and "(g) any board commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency...established, created, and controlled by a 'public agency' as defined in paragraph (a)...(f)[.]"
The Boards created the Committee by resolutions, establishing it as a "public agency" under KRS 61.805(2)(g). Further, the Committee members were named and appointed by the Board resolutions, establishing it as a "public agency" under KRS 61.805(2)(f). In 11-OMD-060, we held that KRS 61.805(2)(f) applied to a "steering committee" or "exploratory group" consisting of six members from three cities, appointed by their respective mayors, "to meet and explore the feasibility of inter-connecting and, possibly, consolidating the water and sewer utilities of each of the three cities." The record does not show that the Boards gave the Committee decision-making authority regarding the potential merger. However, the fact that a group serves only "in an advisory role" and has "no authority to take action" does not alter our conclusion, because the members "discussed" "public business" within the meaning of KRS 61.810(1), 5playing a "critical role in the formation of public policy." 11-OMD-060, pp. 3-4. Accordingly, the Act applies to the Committee.
The January 31 Meeting with Run/Switch was a Public Meeting Held in Violation of the Act . The Committee selected the four Fire Chief members to meet with the Run/Switch public relations firm. The Committee minutes show that the purpose of the meeting was to develop a public relations strategy and craft talking points for a possible merger. Contrary to the Chiefs' activities occurring before the first Committee meeting, the record shows that the Committee formally organized the four Fire Chiefs and authorized them to make final decisions relating to public relations strategy on behalf of the Committee and the Fire Districts. As such, the meeting with the PR firm was a meeting of a "public agency." See KRS 61.805(2)(g). Thus, the Fire Chiefs violated the Act when they failed to follow the requirements for a public meeting. See 06-OMD-068 (holding that group composed of council members, administrators, and residents "appointed, selected, or asked" to participate by a city council was a "public agency" "established, created and controlled" by another public agency within the meaning of KRS 61.805(2)(g)).
Given that the Fire Chiefs were a "public agency" for purposes of their meeting with Run/Switch, KRS 61.810(1) provides 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," and enumerates the exceptions. KRS 61.820(2) provides that "all public agencies shall provide for a schedule of regular meetings . . . . The schedule of regular meetings shall be made available to the public." KRS 61.835 provides that "the minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." A public agency subject to the Open Meetings Act must conduct all meetings of a quorum of its members in which any public business is discussed or action taken as public meetings, establish a schedule of regular meetings that must be available to the public, and record minutes of all action taken which shall be made available to the public. The Open Meetings Act requirements apply "notwithstanding the fact that it [the Fire Chiefs did] not have authority to act." See 06-OMD-068, p. 12. The Fire Districts do not claim that the Fire Chiefs complied with any of these requirements. Accordingly, the Fire Chiefs' January 31, 2019 meeting with Run/Switch was a public meeting held in violation of the Act.
The Committee Violated KRS 61.820(2) by Conducting a Public Meeting Before Making a Schedule of Meetings Available to the Public . The Open Meetings Act does not require the initial meeting of a public agency to be a special meeting. KRS 61.820 states that a public agency "shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency." As such, a regular schedule of meetings establishing an initial meeting of a public agency may be provided for by any of the enumerated means. However, once provided for, "[t]he schedule of regular meetings shall be made available to the public." See KRS 61.820(2). Conducting a public meeting without first making a schedule available to the public is a violation of KRS 61.820(2). See 15-OMD-034; 19-OMD-092.
The Committee elected to provide for a schedule of regular meetings by majority vote during the initial meeting, which was permissible as "other means...required for the conduct of business of that public agency." However, it failed to follow the public notice requirement in KRS 61.820(2). A special meeting was not necessary because the Committee did not hold the initial meeting outside of the schedule of regular meetings, but the regular schedule of meetings was not available to the public until after the close of the January 28 meeting. "Failure to follow all of these provisions constitutes a violation of the Open Meetings Act." 92-OMD-1840. The Kentucky Supreme Court has recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," and the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions."
Floyd Cty. Bd. of Educ. v. Ratliff , 955 S.W.2d 921, 923 (Ky. 1997)(citing
E.W. Scripps Co. v. City of Maysville , 750 S.W.2d 450 (Ky. App. 1990)). Accordingly, the Committee violated KRS 61.820(2) when it held the January 28 meeting before making the schedule of meetings available to the public.
The April 6 Committee Meeting Was a Special Meeting Held in Violation of the Requirements of KRS 61.823 . The April 6, 2019 Committee meeting did not occur at the location stated in the publicly available schedule of regular meetings. This office has observed that "[i]f the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed." 92-OMD-1840, p. 3. The Committee argues that the meeting was not a "special meeting" because the committee only changed the location of the meeting, and otherwise held it on the regularly scheduled date and time. "When the public agency deviates from its regular meeting schedule and reschedules that regular meeting ," "the rescheduled meeting becomes a special meeting." 92-OMD-1473, p. 2 (emphasis added). Therefore, this question turns on whether the Committee deviated from its regular schedule of meetings and, additionally, rescheduled that regular meeting. Evidence exists in the record that the Committee rescheduled the April 6 meeting and therefore violated the Act.
The Attorney General has found that a change of location for a regularly scheduled meeting does not deviate from the regular schedule where the change was made, "for the convenience, safety, or comfort of the public," and the public agency took adequate measures to notify the public. See 97-OMD-84. KRS 61.820 provides, in part, that all meetings of all public agencies shall be held at specified times and places which are convenient to the public." (Emphasis added). However, in 05-OMD-011, this office found that a change in location for a special meeting of the Jeffersonville City Council did not violate the Act because the change was unavoidable and the council took measures to notify the public of the change. We noted that, "as in all matters not specifically addressed by the statute, we apply a rule of reasonableness." Id. , p. 5
Here, the Committee stated that the relocation was made "in order to coincide with an informational meeting about the merger that the Fire Districts invited public officials to attend." That purpose is not "for the convenience, safety, or comfort of the public," and no evidence exists in the record that the change was unavoidable and necessary. The April 22, 2019 meeting minutes show the Committee had advance notice of the importance of the May 6 meeting at WFPD. Further, no evidence exists that adequate measures were taken to notify the public of the change. The record shows that the Committee issued written notices to numerous elected officials informing them of the change in location, but did not provide those notices to the public. The Committee also failed to provide adequate written notice to its members. The record contains an emailed notice of the change in location addressed to the Fire Chiefs, but the email asks that the Chiefs forward notice to their board representatives. Therefore, the Committee deviated from its regular schedule of meetings and rescheduled the May 6, 2019 regular meeting without complying with the notice requirements for a special meeting, which violated KRS 61.820 and KRS 61.823.
The AMFEMS and HFPD Special Meeting Agendas Violated KRS 61.823(3) . AMFEMS and HFPD complied with the notice requirements for a special meeting. However, the two agencies failed to provide agendas that met the requirements of KRS 61.823(3). KRS 61.823(3) provides: "[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." The HFPD notice listing items "Merger Steering Committee update," and "Resolution on a plan of merger," and the AMFEMS notice listing only "regular monthly meeting" failed to meet the agenda requirements of the Act.
In 01-OMD-175, this office concluded that the practice of including open-ended agenda items like "discussion of old business," "discussion of new business," "open to floor," and "open to counsel," is inconsistent with the natural and harmonious reading of KRS 61.823(3), as well as the statement of legislative policy codified at KRS 61.800, and the goal of maximizing notice to the public." Id. , at pp. 6-7; See also 13-OMD-005 (holding that fair notice of a mayor's resignation "and the resulting need for election of a new mayor could not be imputed to the public from the generic term 'Personnel,' nor was any indication that expenditure of funds generally, or putting a roof on the new water plant specifically, would be discussed evident from the very general term 'Projects'").
Like the vague notices in 01-OMD-175, the AMFEMS notice "regular monthly meeting" was far too generic and nonspecific to meet the requirements of KRS 61.823(3). See 07-OMD-099 (holding that vague description to "enter into executive session" violated KRS 61.823(3) as it did not give the public fair notice of matters to be discussed at the special meeting). The HFPD notice items "Merger Steering Committee update," and "Resolution on a plan of merger" failed to give fair notice that the Committee would present recommendations and a final vote on the merger would occur at the meeting, and such could not be imputed from the descriptions. See 13-OMD-005. The facts presented in this appeal significantly resemble those in which this office found special meeting agendas failing to meet the requirements of KRS 61.823(3). Therefore, to the extent discussions were held and the resulting actions taken during the April 17, 2019 special meeting were not properly noticed on the agenda, AMFEMS and HFPD violated KRS 61.823(3).
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 KRS 75.020(4)(a) states in relevant part: "A fire protection district...established pursuant to KRS 75.010 to 75.080 shall not expand its service boundaries or annex territory contained in another fire protection district...[h]owever, the territorial limits of two (2) or more fire protection districts...may be merged into one (1) fire protection district...as follows: (a) The trustees of each fire protection district...shall file a joint petition in the county clerk's office of the county in which all of the districts and the territory to be merged into one (1) district...is located[.]"
2 EFPD adopted its resolution on January 10, 2019; WFPD adopted its resolution on January 16, 2019; HCFPD adopted its resolution on January 21, 2019; and AMFEMS adopted its resolution on January 22, 2019.
3 In Yeoman v. Commonwealth of Kentucky, Health Policy Board , 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."
4 OAG 94-25 expressly stated that "this opinion is not an open meetings decision and consequently does not carry the force of law."
5 KRS 61.810(1) states, in relevant 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[.]"