Request By:
Lorie Love
Kent Clark
Marc Robbins
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Madison County Fiscal Court violated provisions of the Open Meetings Act if, after it adjourned its September 22, 2009, meeting, it engaged in a meeting of a quorum of its members at which public business was discussed or in a series of less than quorum meetings at which public business was discussed and where the members attending one or more of the meetings collectively constituted at least a quorum of the members of the public agency. For the reasons that follow, we find that the Fiscal Court violated the Act under either factual scenario.
On September 23, 2009, Richmond Register Editor Lorie Love submitted a written complaint to Madison County Judge/Executive Kent Clark in which she alleged that "[a]fter the regularly scheduled meeting of the Fiscal Court, the County Judge/Executive, and the magistrates, met to discuss placing an advertisement in the Richmond Register admonishing the Richmond Register for stating that 'Judge Clark requested the [new family court] facility to be within 2 blocks of the courthouse.'" Ms. Love explained:
The ad was sent to the newspaper today, Sept. 23, and when asked about the advertisement, Deputy Judge/Executive Francette Durbin said the ad was given to her by the Judge and Magistrates.
When asked, Magistrate Roger Barger said the decision to run the ad was made after the regular fiscal court meeting and that all of the Magistrates were present.
As a means of remedying the alleged violation, Ms. Love proposed that the Fiscal Court "offer[] an apology to the public for conducting county business in private."
In a response dated September 29, 2009, Judge Clark defended the Fiscal Court's conduct. Judge Clark disputed the Richmond Register's "assumption that 'public business' was discussed at a meeting of the Magistrates subsequent to the regularly scheduled meeting," but "acknowledge[d] that certainly there could be a perception that this was the case." He observed:
According to [the complaint], the violation occurred as a result of a discussion by the Magistrates of the Register's inaccurate reporting of a previous advertisement run by the County in the Register . It is [the Register's ] contention that such discussion and that criticism should have occurred in public. Since you acknowledge that the advertisement was not accepted or run in the Register nor paid for by the county, there is no "action," at least in that regard, to be remedied or revoked.
In closing, Judge Clark indicated that he would "place this matter on the agenda of the next meeting of the Fiscal Court" as a more appropriate remedy to the Richmond Register's complaint that "the private discussion between [the Judge] and one or more of the magistrates was improper." Dissatisfied with this response, the Richmond Register initiated this appeal.
In supplemental correspondence directed to this office following commencement of Ms. Love's appeal, Judge Clark elaborated on the Madison County Fiscal Court's position. He advised:
[T]his Fiscal Court has never knowingly or intentionally broken the sunshine laws of our State. After our meetings are adjourned, we like so many other government entities enjoy sitting around and talking about family, friends, and what's happening in their respective districts. This was the case on September 22. The complaint in question was never brought up or discussed.
I had been milling around the thought of a correction ad after the Richmond Register continued to print the wrong information in their stories about our new Family Court Facility. But on September 22, Magistrate Tudor and I were still in the courtroom talking after everyone had left, and I looked out the window at the construction site of family court. The ad hit me, I asked Mag. Tudor and was told he wanted to proof read first. I ran Magistrate Botner down in the back hallway, same reply; I want to see it first. Then back to my Executive Assistant's office where Magistrate Combs was talking with Linda, same response. I found Magistrate Barger in my Secretary's office, same reply.
It was his position that neither he "nor any of the Magistrates would ever intentionally break the state law concerning open meetings." Indeed, he noted, the Fiscal Court has invited Ms. Love "to openly discuss this matter at our next Fiscal Court Meeting." While the participating Fiscal Court members' subjective intent cannot be determined, we find that their actions otherwise violated the Open Meetings Act.
The Open Meetings Act prohibits both "a quorum from discussing public business in private" and "meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act." It is the decision of this office that the participating Fiscal Court members violated KRS 61.810(1) if they engaged in a single "secret" meeting of a quorum of the Fiscal Court's members at which public business was discussed, regardless of whether they took action. Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 474 (Ky. 1998). Although we cannot determine their subjective intent, the participating Fiscal Court members otherwise violated KRS 61.810(2) if they engaged in a series of less than quorum meetings at which public business was discussed and the members attending those meetings collectively constituted a quorum, regardless of whether they took action.
The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), states that:
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[.]
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.
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 at 474. 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. Although the term "meeting" is broadly 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," 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).
Yeoman at 474.
The record on appeal contains conflicting evidence as to the concurrent or consecutive presence of a quorum of the members of the Fiscal Court. The Richmond Register indicates that a quorum of the Fiscal Court met to discuss public business and apparently made a decision to take action, all without conducting a public meeting or giving notice of the meeting. Judge Clark responds that he and Magistrate Tudor discussed the matter in the Fiscal Courtroom, that he and Magistrate Botner discussed the matter in the back hallway, that he and Magistrate Combs discussed the matter in the office of his executive assistant, and that he and Magistrate Barger discussed the matter in his secretary's office. He maintains that the Fiscal Court "never met collectively or made any decisions that day . . . ." The record on appeal nevertheless confirms that a single gathering of a quorum of the members of the agency occurred or a series of less than quorum gatherings occurred where the members attending one or more of the gatherings collectively constituted a quorum. The first element of a violation of KRS 61.810(1) and/or (2) is therefore firmly established.
In Yeoman , the Supreme Court recognized that "[f]or a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency." Id . (Emphasis added.) "Public business," the Court admonished, "is not any discussion between two officials of the agency . . . [, but] the discussion of the various alternatives to a given issue about which the [agency] has the option to take action." Discussions relating to the running of an advertisement to correct misstatements concerning the construction site for the county's family court facility fall within the scope of this definition of the term "public business. " This was not a discussion of issues about which the Fiscal Court has no option to take action, but was, instead, a discussion of matters directly or indirectly related to an issue upon which the Fiscal Court has the option to act. This discussion constituted the second element of a violation of KRS 61.810(1) and/or (2).
KRS 61.810(2) contains a third element. That element relates to intent. It requires a showing that the gatherings "are held for the purpose of avoiding the requirements of [the Open Meetings Act] ." As noted, the Attorney General has acknowledged the difficulties associated with determining the subjective intent of the meeting participants, but has generally found that the series of less than quorum meetings at which public business is discussed or action is taken otherwise falls within the zone of conduct prohibited by KRS 61.810(2) . 1 If proof of intent to circumvent the requirements of the Act was adduced, this office has found that the participants violated KRS 61.810(2). 2 Thus, at page 3 of 94-OMD-106, this office stated that "the enactment of KRS 61.810(2) represented an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act. " See also 02-OMD-153; compare 02-OMD-107.
If, after they adjourned their September 22 meeting, a quorum of the members of the Madison County Fiscal Court met with the County Judge to discuss the advisability of running an advertisement in the Richmond Register to clarify the Fiscal Court's position on the location of the new family court building, that meeting constituted a violation of KRS 61.810(1) . If, as the County Judge acknowledges, he conducted a series of meetings with individual magistrates collectively constituting a quorum, and if the meetings were held to avoid the requirements of KRS 61.810(2), these actions constituted a violation of KRS 61.810(2). We acknowledge our inability to determine the Fiscal Court members' purpose, and that there is no empirical means by which we can establish subjective intent. Nevertheless, we find that, at a minimum, their actions offended two of the three elements of KRS 61.810(2).
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 proceedings.
Footnotes
Footnotes
1 See 03-OMD-092.
2 94-OMD-106.