Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the action of the City of Kuttawa in relation to certain payroll checks violated the Open Meetings Act. For the reasons that follow, we find no violation of the Act.
On January 28, 2003, Richard G. Bowman submitted a written complaint to Lee McCollum, Mayor, the presiding officer of city council meetings, concerning the actions taken by the City in relation to "City Treasury 2002 Disbursement Payroll Checks: # 1588, # 1713, # 1849." In his letter, Mr. Bowman explained, in part:
These checks were to a "non-existent" employee as Kathryn Dunn had her last work day as March 6, 2002. Her resignation was accepted by the City Council at their April 1, 2002 council meeting. These three additional Kathryn Dunn paychecks were issued for May, June, and July as debits to the City treasury, which is public money, intended only for work "performed as a city employee." This was in excess of $ 5000, which is above the felony threshold of $ 300. KY Constitution 3, and other KY law forbid gifts and severance pay. Public money shall be used only for actual services and purchases expressly authorized by a specific KY Revised Statute.
As a means of remedying the actions in his complaint, Mr. Bowman suggested that the Mayor forward his complaint to "our newly-appointed Kuttawa Ethics Board, to other KY law enforcement agencies, to our newly elected and reelected legislative branch Council Members and to our City Attorney."
By letter dated January 30, 2003, Mayor McCollum responded to Mr. Bowman's complaint, stating:
This is in reference to your letter labeled complaint letter 02, dated January 28, 2003. Each check was reviewed and approved by the Kuttawa City Council.
Following Mayor McCollum's response, Mr. Bowman initiated an appeal to the Attorney General, appealing the City's response to his complaint. In his letter of appeal, he stated, in part,
This "Severance Pay was ruled OK" by the City Council, as we have heard, during two CLOSED executive sessions, therein modified by the attempt to comply with Katherine Dunn's terms within her resignation letter to the Mayor. All this was never submitted or filed in the public record. These EXTRA PAYROLL CHECKS are shown, within the public meeting minutes, as being paid from the "audited and certified" Payroll Account."
Blank approval, at three Open Council Meetings, was given, by the Council to pay "all the bills." No public discussion, or a specific motion-and-vote was ever taken, nor recorded, on these three "extra" Payroll Checks to Mrs. Katherine Dunn. Local citizen rumors suggest this was "hush money."
We are asked to determine whether the actions of the City violated the Open Meetings Act. For the reasons that follow, we find the actions of the City did not violate the Act.
The Attorney General's role in adjudicating an open meetings dispute is a narrow one. This office is not empowered to resolve disputes that involve issues that are beyond the scope of the Act. Our review is confined to the issue of whether the agency violated the Open Meetings Act, and not the remedial measures it implements. See KRS 61.846(2) (providing that the Attorney General shall issue "a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850"); see also, 93-OMD-49, 93-OMD-81; 94-OMD-83; 94-OMD-111. Thus, how an agency conducts its business, such as the procedural manner in which a vote is taken is not addressed by the Open Meetings Act. In 02-OMD-11, in discussing the propriety of a planning and zoning commission's procedure of using a consent agenda at a regular meeting, we stated:
Our function, in reviewing an appeal under the Open Meetings Act, is restricted to a determination of whether the agency violated the provisions of the Act. We can discern no violation of KRS 61.800 to 61.850 in the use of a consent agenda as long as the minutes of the Commission meeting "set[] forth an accurate record of votes and actions at [the] meeting." KRS 61.835. Thus, the Attorney General has recognized that with respect to the rules of proceeding governing public meetings:
OAG 78-522, p. 2. No doubt, the public reasonably expects and heartily welcomes open and public debate on each and every issue upon which the agency is empowered to act, but we can locate no provision of the Open Meetings Act that proscribes a consent agenda that obviates the need for debate.
Thus, the Open Meetings Act does not dictate specific procedural rules relating to the conduct of meetings. The Mayor's response to Mr. Bowman's complaint indicated that each check was reviewed and approved by the City Council.
In the instant appeal, Mr. Bowman challenges the action taken by the City Council relative to certain payroll checks paid to an employee after the date of her resignation. He does not allege that action was taken on the checks at an improperly noticed meeting, that final action on the checks was taken in a closed meeting, that discussions concerning the checks occurred in an improper closed meeting for which no statutory authority existed. His allegation that "blank approval" was given by the City Council, that "no public discussion" or a "specific motion-and-vote was ever taken" at the council meetings does not state a violation of "the provisions of KRS 61.805 to 61.850," and are therefore not cognizable under the Open Meetings Act. See 99-OMD-183. Thus, Mr. Bowman alleges no violation of the Open Meetings Act that is appropriate for review by this office.
He suggests that the Mayor remedy this matter by forwarding it for review to the "Kuttawa Ethics Board, to other KY law enforcement agencies, to our newly elected and reelected legislative branch Council Members and to our City Attorney." We believe his challenge is to the propriety of the payment of the checks, rather than an improperly conducted public meeting. As such, it is not a justiciable issue capable of resolution under the Open Meetings Act and beyond the scope of the Attorney General's review of an open meetings dispute. Accordingly, we find no 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 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.
Richard G. Bowman90 Benberry Ct.Kuttawa, KY 42055
Lee McCollum, MayorCity of KuttawaP.O. Box 400Kuttawa, KY 42055
William R. YoungAttorney for City of KuttawaP.O. Box 472Eddyville, KY 42038