Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Louisville and Jefferson County Metropolitan Sewer District violated the Open Meetings Act at an informational gathering held on March 3, 1998, at the Southwest Government Center. In a complaint filed on March 18, 1998, Robert Lee Kemper Jr., alleged that MSD violated the Act when it failed to give notice of the gathering to persons who rent property within the area affected by a proposed sewer installation plan, and when it required persons attending the gathering to identify themselves to obtain the information packet addressed to them which had been prepared by MSD. For the reasons that follow, we find that although its handling of this matter did not conform to the procedural requirements found at KRS 61.846, MSD did not violate the Act.
On behalf of MSD, Julia Lundy responded to Mr. Kemper's complaint on April 7, 1998. Ms. Lundy began by noting that MSD's executive director and presiding officer, Gordon Garner, was not aware that Mr. Kemper had filed an open meetings complaint until he was notified by the Attorney General. At that point, he learned that Mr. Kemper sent his complaint to one of MSD's "satellite facilities," and that the complaint therefore never reached him. It was MSD's position that "a public agency is not responsible for the correct transmission of a complaint, or in the event of an incorrect transmission, of having knowledge of a document never received."
With regard to the substantive issues which Mr. Kemper raised in his appeal, Ms. Lundy argued that the gathering held on March 3 was neither a regular nor a special meeting of MSD insofar as "there was not a quorum of MSD officials present, and although a proposed project was discussed, no action was taken by MSD, or the affected property owners." The purpose of the gathering, Ms. Lundy explained, was to educate and inform property owners in the affected area, and to distribute information. Failure to notify renters and others indirectly affected by the project therefore did not constitute a violation of the Open Meetings Act. Nor, Ms. Lundy maintained, did MSD's request that attendees at the gathering identify themselves to obtain their information packets.
We cannot agree with Ms. Lundy that MSD is not responsible for the correct transmission of an open meetings complaint. KRS 61.846(1) provides, in part:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. 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.
Mr. Kemper's request was addressed to the "Officer in charge of compliance with Open Meetings Law and/or Director of Legal Department" and faxed to an MSD office. There was no mystery as to the nature of the transmission, and it was incumbent on the MSD employee who received it to immediately forward it to Mr. Garner or MSD's legal department. As with the Open Records Act, it is imperative that public agencies educate their employees on the importance of these laws, and in particular, the need to immediately forward all misdirected open meetings complaints to the agency's presiding officer.
We believe that MSD's position on the merits is well-founded and legally correct. As we did in OAG 94-25, "we proceed on the premise that our 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. " OAG 94-25, p. 3. The term "meeting" is sweepingly defined at KRS 61.805(1) as:
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 [.]
Although the informational gathering at which the alleged violations occurred was a "meeting" within the broad scope of this definition, it was a meeting of no legal significance or effect. This is because a quorum of the members of MSD's governing body were not present at the meeting. KRS 61.810(1) specifically provides:
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. . . .
If a quorum of the members of the public body are not present, the body cannot act. See, e.g., OAG 84-45, holding that "no collective decision or commitment can be made by the public agency as long as a quorum is not present."
In the appeal before us, it appears that not only was there no quorum of the members of MSD's governing body, but that no members of the governing body were present. Thus, the informational gathering conducted by MSD on March 3 was a meeting, as defined in KRS 61.805(1), but not a "public meeting" triggering the requirements of the Open Meetings Act because a quorum was not present. Its purpose was to permit representatives of MSD to respond to inquiries from, and distribute information to, homeowners in the area affected by a proposed sewer project, and not to discuss public business or take action. Because it was neither a legally significant regular nor a legally significant special meeting of the Metropolitan Sewer District, KRS 61.823 and KRS 61.840 are inapplicable.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a) and KRS 61.848. The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.