Request By:
Ms. Amy Wolfford
The Advocate-Messenger
330 S. Fourth Street
P.O. Box 149
Danville, Kentucky 40422
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
On March 12, 1991, you submitted a request to this office for an opinion on a question arising under the Open Meetings Law, KRS 61.805 et . seq . In your letter, you explained that on March 7, 1991, you were ejected from a meeting of the Mercer County Fiscal Court after the court closed the meeting to discuss an increase in the standard fee charged for zoning changes in the county. Present at the closed meeting were two members of the Fiscal Court, two members of the Greater Harrodsburg-Mercer County Planning and Zoning Commission, one member of the Greater Harrodsburg-Mercer County Board of Adjustments, a county zoning officer, and an attorney representing the Zoning Commission.
It is your position that this gathering of officials to discuss a matter of general interest should have been conducted in an open session pursuant to KRS 61.810 inasmuch as it was a "meeting" of a "public agency, " as those terms are defined in KRS 61.805(1) and (2). In support of your position, you have attached a copy of the minutes of the February 19, 1991, Fiscal Court meeting at which the "committee" was created. The relevant portion of the minutes reads as follows:
Judge/Executive James stated that he wanted to appoint a committee of two consisting of James Waggener and Gerald Sheperson to meet with the Planning & Zoning Commission to consider the proposals brought before the Court at the February 5 meeting by the Planning & Zoning Commission. The committee will report back to the Court after meeting with the Planning & Zoning Commission.
You cite the Kentucky Supreme Court's decision in Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987), as further support for your argument.
Mr. Dan Yeast of the state Department of Local Government initially advised the group that they could conduct their meetings in closed session based on the limited facts with which he was provided. After reviewing the minutes of the February 19 meeting, he reversed his position indicating, in a conversation with the undersigned, that he was not aware that a "committee" had been appointed or that it was directed to meet with the Planning and Zoning Commission.
On March 21, 1991, the Mercer County Fiscal Court attempted to rectify this situation by amending the minutes of its February 19 meeting. The court deleted the word "committee" from its previously approved minutes based on the fact that there would not be a quorum of any elected body at the meetings, and the group could take no formal action. On the same date, you were again denied access to a meeting of the group to discuss the fee increase. It is out of this series of events that your question arises.
OPINION OF THE ATTORNEY GENERAL
We are reminded of the oft-quoted words of Judge Howard, writing for the Court of Appeals in Greater Louisville First Federal Savings and Loan Association v. Etzler, Ky.App., 659 S.W.2d 209, 212 (1983): "If something walks like a duck, acts like a duck and quacks like a duck, it's a duck! " Regardless of the label attached to the body, it is, in fact, subject to the Open Meetings Act if it is a public agency within the meaning of KRS 61.805(2), and the business it conducts does not fall within the parameters of one of the narrowly defined exceptions contained in KRS 61.810.
Under the facts presented, we believe that the advisory body consisting of members of the Mercer County Fiscal Court and the Greater Harrodsburg-Mercer County Planning and Zoning Commission, and created by the County Judge/Executive to discuss proposed fee increases for zoning changes, is a public agency, as that term is defined in KRS 61.805(2), and that the subject of its meetings does not fall within any statutorily recognized exception. Accordingly, its meetings should be conducted in open session. This position is consistent with the rule announced by the Kentucky Supreme Court in Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987), our previous opinion in OAG 89-25, and the purpose and intent of the Open Meetings Act.
The Supreme Court adopted a two-part analysis in Presidential Search Committee, supra, addressing first the question of whether the Committee was a public agency. Reversing the decision of the lower court, which had held that it was not subject to the Open Meetings Act because it was not a legislatively created body and because it had only advisory powers, the court ruled that the Committee was a public agency:
It is the opinion of this court that the statute in question, perhaps inartfully drawn, means that a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. The Board of Trustees of the University of Kentucky is created by statute -- viz., KRS 164.130, etseq -- so that the Presidential Search Committee, which was created, in turn, by formal action of the Board of Trustees, is a public agency and therefore subject to the provisions of KRS 61.805, etseq . Any other holding would clearly thwart the intent of the law.
Presidential Search Committee , supra at 806. A fiscal court is clearly a public agency, as defined by KRS 61.805(2), OAG 75-280, and the committee or advisory body created by it or by order of the County Judge/Executive, is a public agency subject to the provisions of KRS 61.805 et . seq . OAG 89-25 (modifying OAG 78-571).
In OAG 89-25, we held that an advisory committee, appointed by the superintendent of the Christian County Board of Education, without formal direction from the Board, was a public agency and therefore required to conduct its meetings in open session. Relying on Presidential Search Committee, supra, we noted that the superintendent is the executive agent of the board and can exercise his executive authority to appoint an advisory committee. This logic can be extended to the present dispute. The County Judge/Executive appointed, albeit somewhat haphazardly, a "committee" consisting of two members of the Fiscal Court and members of the Zoning Commission to discuss a matter of obvious public concern. While its powers are purely advisory, the Committee is a public agency and must hold open meetings. This decision is consistent with the policy which informs the Open Meetings Act, i.e., ". . . that the formation of public policy is public business and may not be conducted in secret." Preamble, 1974 Ky. Acts Chap. 377.
Since the Mercer County Fiscal Court does not argue that the subject of the meetings conducted by the advisory body falls within an exception to the Act, we need not address that issue, which is the second part in the two-part analysis enunciated by the Supreme Court in Presidential Search Committee, supra.
As we noted in an earlier opinion, "The purpose of the Open Meetings Law is to prevent the public's business from being conducted in private. This fact should be kept in mind by public officials at all times." OAG 78-571 (modified on other grounds in OAG 89-25).