Request By:
Owen Covington
Louis Reid Haire
Claud Porter
David C. Fowler
Thomas H. Watson
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Owensboro City Commission and the Daviess Fiscal Court violated the Open Meetings Act by conducting a series of less than quorum meetings between and among members of both agencies to discuss the possible purchase of the Executive Inn Rivermont.
On July 18, 2008, Owen Covington and James Mayse, Messenger-Inquirer , submitted identical complaints to Reid Haire, County Judge-Executive, Daviess Fiscal Court, and Tom Watson, Mayor, City of Owensboro, in which they alleged that the agencies violated KRS 61.810(2) of the Open Meetings Act when a series of several, separate less than quorum discussions between members of the two agencies led up to the decision by the commission and fiscal court to submit a purchase offer on the Executive Inn Rivermont. They further alleged that they had been told by Downtown Development Director Fred Reeves that the decision about what purchase price to offer Marshall Investments for the property and the decision to make a formal offer were arrived at during several, separate conversations with and between members of both the city commission and fiscal court. 1 As a means of remedying the violation, they proposed that the action taken by the agencies in support of the purchase be declared null and void until they complied with the open meetings law in arriving at such a decision.
In a response dated July 23, 2008, David C. Fowler, City Attorney, responding to the complaint on behalf of Owensboro Mayor Tom Watson, denied that members of the Board of Commissioners, individually or collectively, had taken any action in violation of KRS 61.810(2). He further advised:
Your complaint about the erroneously perceived "decision" by the City Commission and Daviess Fiscal Court to submit a "purchase offer" to Marshall BankFirst for the Executive Inn property is inaccurate. You wrongly assumed that a formal decision was made by the City and County officials to make an offer to Marshall BankFirst for the purchase of the Executive Inn property and that this "decision" was made based on prior conversations by and between individual members of both the City Commission and Daviess Fiscal Court. Based on the foregoing, you assert that the City and County intentionally engaged in conduct in violation of KRS 61.810(2). The specious facts set forth by you in support of your contention that the City of Owensboro (and Daviess Fiscal Court) have engaged in conduct in violation of KRS 61.810(2) are unfounded and misguided.
The Owensboro Board of Commissioners and Daviess Fiscal Court properly convened in an open meeting and subsequently went into closed session on July 18, 2008, to discuss the future acquisition of property, on the basis that public disclosure of such deliberations would likely affect the value of the property to be potentially acquired for public use and benefit. No decision by the Owensboro Board of Commissioners and/or Daviess Fiscal Court to acquire property has or will be made, except by a vote of the respective legislative bodies in open session convened for that purpose, as required by the Open Meetings Act. However, the Open Meetings Act does not preclude City or County staff, or members of the respective legislative bodies, on an individual basis, from engaging in discussions for the purpose of educating themselves on the issues at hand, provided that no series of less-than-quorum meetings, shall be held, where the intent of such meetings is to avoid the requirements of KRS 61.810(1).
There have been some discussions by and between the City Manager, Bill Parrish, and County Judge Reid Haire, and individual members of the Owensboro Board of Commissioners, over the future of the Executive Inn property before and after it closed on June 9, 2008. There have also been individual discussions between members of the City Commission and Daviess Fiscal Court about the future of the Executive Inn property and the role, if any, both local governments should play in it. As pointed out, these issues were responsibly addressed during the July 18th meeting of the City Commission and Daviess Fiscal Court. Nothing in the Kentucky Open Meetings Act prohibits the City Manager from discussing property acquisition issues with individual members of the Board of Commissioners. In addition KRS 61.810 states "Nothing in this subsection shall be construed to prohibit discussions between individual members (of a public agency) where the purpose of the discussion is to educate members on specific issues and no decision is made." To date, no final decision and no agreement for the purchase of the Executive Inn property has been approved by either legislative body.
In a letter, also dated July 23, 2008, Claud Porter, Daviess County Attorney, on behalf of County Judge-Executive Reid Haire, responded to the complaint. Mr. Porter also acknowledged that the two agencies had convened in an open meeting and moved to enter a closed session to discuss future property acquisition, as permitted by KRS 61.810(1)b, and that the deliberations related only to the possible acquisition of real property. Explaining further, he advised:
The Daviess Fiscal Court has made no final decision on whether to acquire any real property. When the Court makes a decision it will convene in an open session for that purpose with proper notice to the public as required by the Open Meetings Act.
Members of the Fiscal Court and the City Commission, including the City Manager discussed the future of the Executive Inn property and the government's role, if any, in the future of the property. These discussions were to educate members of the Court concerning the specific issue regarding the government's role in formulating policies and recommendations for development of this property. The Fiscal Court, City Commission and the City Manager may engage in such discussions between individual members where the purpose is to educate members on specific issues.
No member of the Daviess Fiscal Court conducted any series of meetings at which less than a quorum participated with the intent to avoid the requirements of KRS 61.810(1). In accordance with this provision all meetings at which Fiscal Court discusses non-exempt public business or at which the Court will take final action will be open to the public.
On July 23, 2008, Mr. Covington initiated this appeal, arguing that "the series of discussions that led up to the decision by the commission and fiscal court to submit a purchase order on the Executive Inn Rivermont" constituted a violation of KRS 61.810(2).
KRS 61.810(1) 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, except for the following:
Addressing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, KRS 61.810(2) provides:
Any 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 subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues .
(Emphasis added). In construing these provisions, the Kentucky Supreme Court has declared that "[t]he Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998). Violation of the Open Meetings Act, insofar as it relates to "secret meetings," is thus predicated on two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken, and (2) a series of less than quorum meetings attended by members of the agency collectively constituting a quorum and held for the purpose of circumventing the requirements of the Act. Continuing, in Yeoman the Court observed:
For a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency. Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action. Taking action is defined by the Act as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body." KRS 61.805(3).
Because there is no evidence in the record on appeal that a quorum of the members of the committee were present at a single meeting from which the public was excluded, or that the members engaged in a series of less than quorum meetings for the purpose of avoiding the requirements of the Open Meetings Act, we find no violation of the Act.
In 93-OMD-20, we determined that no violation of the Open Meetings Law occurred when a public official solicited comments and suggestions from other officials concerning a proposed ordinance, but "no final decisions or commitments were made by anyone . . . relative to the ordinance prior to its consideration by the [public agency] at its [scheduled] meeting . . . ." 93-OMD-20, p. 4. There, we concluded:
We do not believe that the Open Meetings Act prohibits all contacts by and among the members of a public agency outside of an open and public meeting. When, as here, a draft of an ordinance was being prepared for discussion at an open and public meeting and the person preparing the draft merely sought comments and suggestions from the individual [agency] members relative to the terms and provisions of that ordinance, there is no violation of the Open Meetings Act.
Id.
In Elm Street/McCracken Pike Preservation Alliance, Inc. v. Siegelman , No. 2005-CA-002079-MR (Ky. App. Nov. 2, 2007), the Court of Appeals held that where less than quorum meetings were held to educate city council members on specific issues, no violation of the Open Meetings Act occurred. 2 Citing KRS 61.810(2) , the Court stated:
The statute outlines the parameters of open meetings, and by its very terms permits members to engage in discussions with each other "where the purposes of the discussions is to educate the members on specific issues." In this case, it is clear that the individual Council members had concerns, specifically legal concerns, as to what options they had available to them in dealing with the recommendations of the Planning and Zoning Commission. In fact, Appellants in their brief, note that the City Attorney was present at these smaller meetings prior to the full City Council. It is just this kind of meeting that the law specifically permits. A meeting where the purpose of the discussion is to educate members on a specific issue pending before the City Council. The record supports the fact that the members were trying to educate themselves as to what options, if any, they could take as it regards the second application which was pending before them. That is a legitimate reason for the meetings under the statute, and does not violate the law.
The exception to meetings of less than a quorum, however, is also set forth in the statute. Where the motive of the meetings is to avoid complying with the requirements of the Open Meetings Law they violate the law. Nothing in the record supports Appellant's contention that the intent or motive of the Council members was to frustrate the law concerning Open Meetings. Therefore, this Court finds that the City Council complied with the Open Meetings Law, and thus acted within its authority as codified in KRS 100.211.
In their responses, both agencies acknowledged that there had been less than quorum meetings and conversations between the City Manager, the County Judge-Executive and individual members of the City Commission and Daviess County Fiscal Court and individual meetings between individual members and staff of both agencies. Both agencies affirmatively stated that the purpose of the discussions was to educate members on the specific issue about the future of the Executive Inn property and the role, if any, both local governments should play in it. This is the type of less than quorum meeting which KRS 61.810(2) permits and was recognized as a legitimate reason for such meeting under that statute in Siegelman , supra. Both agencies further affirmatively stated that the members did not meet in a series of less than quorum meetings to avoid open meetings requirements.
As noted above, because there is no evidence in the record on appeal that a quorum of the members of the public agencies was present at a single meeting from which the public was excluded, or that the members engaged in a series of less than quorum meetings for the purpose of avoiding the requirements of the Open Meetings Act, we find no violation of the Act. Accord, 02-OMD-107 (in the absence of evidence supporting allegation that a secret meeting or series of secret meetings occurred, and the mayor's affirmative statement that the commissioners did not meet secretly in a single meeting, or series of meetings, to avoid open meetings requirements, Attorney General finds no violation of the Act). In so concluding, we are guided by the direction taken by the Court of Appeals in Siegelman , supra. We nevertheless continue to ascribe to the view that the practice of engaging in a series of less than quorum meetings to discuss public business should constitute the rare exception to the general rule of public discussion and legislative policy that "the formation of public policy is public business and shall not be conducted in secret, " even if the purpose of those less than quorum public meetings is to "educate" the agency members. KRS 61.800. This office is not inclined to accept such a defense on a recurring basis without persuasive evidence in the record on appeal supporting the defense.
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.
Footnotes
Footnotes
1 This is the only piece in the record on appeal in which this statement appears. Both the city and the county directly refute this statement. Given this factual disparity, this office is unable to resolve the question of whether final action was taken.
2 Elm Street/McCracken Pike Preservation Alliance, Inc. v. Siegelman , is an unpublished opinion rendered after January 1, 2003, that, pursuant CR 76.28(4)(c), may be cited for consideration if there is no published opinion that adequately addresses the issue.