23-OMD-103
May 2, 2023
In re: Larry G. Bryson/Laurel County Board of Education
Summary: In appeals to the Office under the Open Meetings Act (“the
Act”), the Office cannot resolve factual disputes or determine the
credibility of witnesses. Accordingly, the Office cannot find that the
Laurel County Board of Education (“the Board”) violated KRS 61.810(2)
by holding a series of less-than-quorum meetings.
Open Meetings Decision
Larry G. Bryson (“the Appellant”) submitted a complaint to the presiding
officer of the Board alleging it had violated the Act by holding a series of less-than-
quorum meetings to discuss replacing him as the Board’s attorney. Specifically, the
Appellant alleged that three of the Board’s five members had met in secret prior to
its regularly scheduled meeting on January 9, 2023, and before a subsequent meeting
on January 23, 2023, to discuss replacing him as counsel to the Board. In a timely
response, the Board denied the three members discussed that subject outside of those
two public meetings. This appeal followed.
Under KRS 61.810(1), “[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 in certain
situations not relevant here. Moreover, under KRS 61.810(2), “[a]ny 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
[KRS 61.810(1)], shall be subject to” KRS 61.810(1). In other words, a public agency
may not intentionally avoid the Act’s requirement to discuss or take action on public
business in a meeting open to the public by holding smaller meetings that, when thosein attendance are combined, would result in a quorum of the members having
discussed or taken action on such public business.
Before proceeding to the merits of the Appellant’s complaint, the Office must
first address its limitations. While the Attorney General recognizes his duty to review
complaints and agencies’ responses thereto to determine whether a violation of the
Act has occurred, KRS 61.846(2), the Office cannot resolve competing factual claims
about events that may or may not have transpired. See, e.g., 00-OMD-169. The Act
does not permit the Office to issue subpoenas, take testimony, or judge the credibility
of witnesses. Nor could it, even if authorized to do so, in the short time frame provided
for this Office to render a decision. See KRS 61.846(2) (requiring the Attorney General
to issue a decision within ten business days). Disputes that turn heavily on competing
evidence are better suited for review in circuit court. See KRS 61.848. This is one such
case.
Here, the Appellant provides evidence that, he argues, supports his claim that
three Board members violated KRS 61.810(2) when they discussed replacing him as
Board attorney. First, in response to his requests to inspect the Board’s records, he
obtained text messages between multiple Board members and the Board’s new
attorney. These text messages include text messages solely between individual Board
members and the new attorney, as well as some “group text” messages that included
group conversations among multiple Board members. The text messages between the
new attorney and individual Board members, however, do not demonstrate that a
violation of KRS 61.810(2) occurred. Rather, those text messages show three Board
members supported the new attorney, but the new attorney, who was the only nexus
between these three independent conversations, was not himself a Board member.
The new attorney’s text messages with individual Board members does not constitute
a series of less-than-quorum meetings because those conversations did not occur
among the Board members.1
1
The Office notes that it is questionable whether such conversations would have violated
KRS 61.810(2) even if the new attorney was a Board member. While the Office previously may have
considered written communications, such as emails, among a quorum of members to be subject to the
Open Meetings Act, see, e.g., 14-OMD-015, that interpretation lacks textual support from the Act. It
also lacks any basis in what the word “meeting” means. It is not necessary to decide that question
here, however, because none of the text messages provided on appeal document three Board members
discussing the replacement of the Appellant. The closest the Board came to engaging in such a
conversation is documented by texts the Board provides in response to the appeal. There, one Board
member asked to place the topic of the Appellant’s replacement as counsel on the agenda because he
believed the Board needed new counsel. A second member expressed his disagreement with that belief.
A third member then stated he believed such a conversation should be held in closed session rather
than open session at the meeting, but he did not express an opinion as to the merits of the proposal.
Thus, the group text shows two members discussed whether to retain the Appellant, but the third
member did not discuss the merits of such a proposal and limited his statements to whether and where
to place the topic on the agenda. This Office has previously found that discussions that merely relate
to the administrative function of placing matters on the agenda do not constitute discussions of “publicRegarding the group text messages the Appellant provides, none involve
discussions of his replacement. Rather, one is a discussion about placing an athletics
policy on the agenda, in which it appears all five members and the new attorney were
in the group text, but only one member discussed his opinion about the policy. The
remaining members who engaged in the discussion limited their statements to
whether the matter should be addressed in open or closed session at a regularly
scheduled meeting. Because discussions about placing a matter on the agenda do not
constitute “public business,” see, e.g., 13-OMD-086, this conversation did not result in
a quorum discussing public business by text messages.2 The other group text message
involved three members noting the Chief of Police for Laurel County Public Schools
had resigned, but did not include any discussions about what the Board should do
about it, other than one member mentioning a name for a potential interim
replacement. As such, this type of message was limited to educating the members
about that Chief of Police’s resignation. See KRS 61.810(2) (“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”). Therefore, it did not constitute a series of less-than-quorum meetings under
KRS 61.810(2).
The Appellant also offers as evidence the affidavits of two Board members, the
Superintendent, and himself. However, these affidavits can be summarized generally
as the affiants’ beliefs that three Board members must have met or discussed
replacing the Appellant previously because they believed “the decision” had already
been made. None of the affiants state they observed the three Board members
discussing that topic. In response, the Board offers the affidavits of two members who
swear they did not engage in such conversations. Rather, they claim to have each
independently come to the decision to replace the Appellant. The Board further
provides the minutes of the January 9 meeting, in which the first full discussion of
replacing the Appellant occurred and which documents a 2-2 vote to replace the
Appellant, with one member abstaining. According to the Board, if the three members
who ultimately decided to accept the Appellant’s resignation on January 23 had
already decided to replace him before the January 9 meeting, then one of them would
not have abstained from the vote to replace him on January 9. According to the Board,
this is proof that the decision had not been secretly made ex ante. The abstaining
member, who submitted an affidavit in support of the Board, swore that he did not
have any conversations about replacing the Appellant with a new attorney, and his
business,” and therefore, do not trigger KRS 61.810(1) or (2). See, e.g., 19-OMD-123; 13-OMD-086; 00-
OMD-171. Accordingly, the third member’s limited statements about whether to place the subject on
the agenda for open or closed session did not constitute the necessary third member to establish a
quorum.
2
Nor were they for “the purpose of avoiding” the Acts requirements, KRS 61.810(2), as the very
purpose of those statements was clearly to move the discussion from text messages to a properly
noticed and scheduled meeting.reason for switching from an “abstain” to an “aye” on January 23 rested on statements
the Appellant made at the public meeting on January 9.
Thus, the record here contains affidavits in support of the Appellant, in which
the affiants swear they believe secret meetings occurred, and affidavits in support of
the Board, in which the affiants swear no such secret meetings occurred. The mere
stated belief that secret meetings occurred is not evidence that they did occur,
especially not when rebutted by the Board members, who swear such meetings did
not occur. See, e.g., 18-OMD-060 (mere speculation that secret meetings must have
occurred is insufficient). In terms of the Appellant’s argument, these affidavits
demonstrate, at best, a factual dispute turning on the credibility of witnesses. The
Board members swear they did not meet, and the Appellant’s affiants swear to a belief
that they did, but they do not swear to have observed or been a party to any secret
meeting. Accordingly, this Office cannot find the Board conducted a series of less-
than-quorum meetings in violation of the Act.
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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#159
Distributed to:
Larry G. Bryson
John T. Blevins