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 Kentucky Unemployment Insurance Task Force violated the Open Meetings Act at its November 18, 2009, public meeting when it conducted three nonpublic meetings of groups consisting of less than a quorum of the Task Force's total membership "to proceed with review of the proposed changes" to the state's Unemployment Insurance program. Although we cannot gauge the subjective intent of the participants in these nonpublic meetings, we find that their conduct fell within the zone of conduct otherwise prohibited by KRS 61.810(1) and (2).
In a letter directed to Chairperson Helen Mountjoy and dated November 19, 2009, Jon L. Fleischaker complained that at the November 18 meeting:
the Task Force conducted a meeting for the purpose of formulating and discussing potential solutions relating to the Commonwealth's growing unemployment deficit. As part of that meeting, the Task Force members split into two or three small groups for more than five hours. The groups were generally divided into business, interest, labor interests, and legislators. Some members of the Task Force shuttled back and forth, sharing information among the groups. The Task Force excluded the public and the press from that portion of the meeting.
Mr. Fleischaker characterized these meetings, alternatively, as a single secret meeting of the Task Force, notwithstanding the fact that discussions occurred in small groups, a series of secret less than quorum meetings, where the members attending one or more of the meetings collectively constituted at least a quorum, held for the purpose of avoiding the requirements of the Act, or secret meetings of three ad hoc Task Force subcommittees. He maintained that the meetings violated KRS 61.810(1) and/or (2), and proposed that the Task Force remedy the violation by, inter alia, producing for inspection any records of the meetings.
In response, the Task Force asserted that "[t]he small group meetings, none of which constituted a quorum of the Task Force, were separate from the general Task Force meeting and were not held for the purpose of avoiding the requirements of KRS 61.810(1)." The Task Force reasoned:
The small group meetings were held based upon a suggestion of a member as a way to proceed with review of the proposed changes. No specific issue was assigned to a small group. The small group meetings are authorized by KRS 61.810(2) of the Open Meetings Act . . . .
Additionally, the Task Force disputed The Courier Journal's allegation that the less than quorum groups constituted discrete public agencies within the meaning of KRS 61.805(2)(g), arguing that the Task Force neither established, created, nor controlled the groups. Nevertheless, the Task Force agreed to provide The Courier Journal with "graphs and scenarios that were previously discussed at Task Force meetings" and "a copy of the recording of the November 18 Task Force meeting" in an apparent conciliatory gesture. 1
On appeal, The Courier-Journal contended that "the small group discussions were not separate or distinct from the Task Force meeting; they took place for five hours right in the middle of it . . .[, were] attended by all members[, and focused on] the exact same public business the Task Force was created to consider . . . ." In spite of the fact that the groups sat at separate tables, The Courier maintained, "they still constituted part of one meeting of the entire Task Force." Alternatively, The Courier argued that the less than quorum meetings constituted a violation of KRS 61.810(2) and that they were, in fact, held to avoid the openness requirement codified at KRS 61.810(1). With reference to the latter statement, The Courier observed:
The Task Force merely claims that it held the group discussions 'as a way to proceed with review of the proposed changes,' and that no other issues or tasks were assigned to the discussion groups. [Citation omitted.] As such, the Task Force admits that its members went into closed group discussion solely for the purpose of discussing the same topic and at the same location as the preceding open session. After the closed session, the Task Force reconvened in open session in order to adjourn. Short of a direct admission by the Task Force, it is difficult to imagine clearer evidence that the Task Force's purpose in dividing into discussion groups was to exclude members of the public and press.
Finally, The Courier reaffirmed its position that, "accepting the tenuous claim that the group discussions were independent less-than-quorum meetings and were not held to subvert the requirement of openness, " each group constituted an ad hoc committee or subcommittee of the Task Force "subject to all requirements of the Open Meetings law."
In supplemental correspondence directed to this office, Task Force counsel Randall Justice denied The Courier's allegations. He described the Task Force's charge and explained that as it was approaching the formulation of a final recommendation, workers and employers "had to agree" to certain concessions. Continuing, he indicated that at the November 18 meeting:
Task Force members representing these two different interests suggested that they caucus in private with their respective groups. Each group would be able to discuss what concession they might be willing to accept outside of the other group's presence.
He reiterated that the purpose of the group meetings was not to "keep[] the public out" but to "allow[] workers and employers to caucus. " Acknowledging that the Task Force itself was a public agency, he maintained that because "[e]ach small group comprised only a third of the Task Force[,] . . . none of these meetings constituted Task Force meeting which would have to be open . . . ."
Mr. Justice rejected The Courier's claim that the group meetings contravened KRS 61.810(2), relying on 96-OMD-261 for the propositions that absent proof that "the Task Force members met in small groups 'on more than one occasion,'" and that they "did so for the purpose of 'avoid[ing] the requirements of the Open Meetings Act, '" no violation could be found. With reference to the element of intent, he noted that the group members' purpose "was not to obtain privacy from the public generally, but rather, was to obtain privacy from each other while they discussed the concessions they were willing to make in negotiations." Although the less than quorum discussion groups may have been prompted by the need for efficiency or other pragmatic concerns, 2 we find that the Open Meetings Act does not permit this conduct and that, indeed, such conduct represents a serious threat to the law.
The general mandate of the Act is codified at KRS 61.810(1) and 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:
Recognizing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, in 1992 the General Assembly enacted KRS 61.810(2) which states:
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 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 [agency] 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).
Id. It is undisputed that the Task Force is a public agency within the meaning of KRS 61.805(1), that it properly convened its November 18 meeting in an open, public session, and that, in the course of meeting, a member or members proposed that groups representing the competing interests "caucus in private . . . to discuss what concession they might be willing to accept outside of the other group's presence." Regardless of whether these meetings are characterized as a continuation of the November 18 meeting with all members attending, although seated at separate tables, or a series of less than quorum meetings attended by members of the Task Force collectively constituting a quorum, to discuss "the various alternatives to a given issue about which the [Task Force had] the option to take action," id., they violated the spirit of the law if, in the latter case, the members did not intend to avoid the requirements of the Open Meetings Act, the letter of the law if they did, or both the spirit and the letter of the law if the meetings represented a continuation of the regular meeting.
KRS 61.805(1) defines the term "meeting" 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." This all encompassing definition extends to the meeting or meetings conducted by the Task Force on November 18. The Task Force's action had the net effect of an unauthorized closed session in contravention of KRS 61.810(1), or an unauthorized series of less than quorum meetings where the members attending one or more of the meetings collectively constituted a quorum in contravention of KRS 61.810(2).
In 00-OMD-63, the Attorney General analyzed KRS 61.810(2) in considerable depth, observing:
KRS 61.810(2), enacted in 1992, places restrictions on the rights of public officials to engage in discussions of the public's business in any forum other than a public forum. . . . Acknowledging the difficulties associated with determining the subjective intent of the participants in a series of less than quorum meetings, this office concluded, in 94-OMD-106, that the fiscal court violated the Open Meetings Act when its members met individually or in small groups to discuss public business. At page 3 of that decision, we reasoned that 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. "
00-OMD-63, p. 5. There, we held that a fiscal court violated KRS 61.810(2) based on the county judge/executive's unrefuted statement that he had conducted separate meetings with each of the members of the fiscal court to discuss a new jail site and that they had "collectively . . . agree[d]" to a specific course of action. Although we acknowledged our inability to determine whether the members of the fiscal court conducted this series of less than quorum meetings for the purpose of avoiding the requirements of the Open Meetings Act, we concluded that the fiscal court's actions otherwise fell within the prohibition described in KRS 61.810(2). Compare 00-OMD-171 and 00-OMD-200 (because members of city council who were alleged to have engaged in a series of less than quorum meetings denied that meetings occurred, and no evidence of a series of meetings was otherwise presented, Attorney General held that no violation could be established).
We find no support in the Open Meetings Act for the argument advanced by the Task Force that a "series" of meetings cannot be conducted simultaneously. To hold otherwise would promote abuse. A quorum of the members of a public agency could convene in public session only to divide into less than quorum groups to conduct nonpublic discussions of public business. This could not have been the legislature's intention in enacting KRS 61.810(2). Indeed, it is our view that KRS 61.810(2) was enacted to prohibit, and not to authorize, this conduct. For this reason, in 01-OMD-110 the Attorney General determined that KRS 61.810(2) could not be construed to authorize whispered discussions among members of a public agency when the discussions focused on an issue about which the agency had the option to take action. At page 8 of that decision we declared that "[b]ecause a quorum of the members were present, and public business was being discussed, the meeting was required to be 'open to the public at all times,' and not interrupted by whispered discussions to which the public was effectively denied access." The only material difference between the facts giving rise to 01-OMD-110 and the appeal before us is that in the former the agency members did not divide into groups to privately discuss public business, and here they did. We can imagine no greater threat to the public's right of access, short of blind disobedience, than the interpretation of law advanced by the Kentucky Unemployment Insurance Task Force.
While we agree with The Courier-Journal that substantial evidence exists that the Task Force's purpose in dividing into smaller groups was to exclude the public as well as members representing competing interests, we are unable to assign a culpable mental state to the Task Force. The insult to the public's right of access may well have been incidental to the Task Force's stated goal. Nevertheless, we are unwilling to accept the proposition that, absent proof of an intent to circumvent the requirements of the Open Meetings Act, no error can be found. This office has repeatedly acknowledged its inability to determine the subjective intent of the members of a public agency in conducting a series of less than quorum meetings, but has nevertheless concluded, in nearly all cases, that the agency's conduct otherwise fell within the zone of prohibited conduct. This is no small matter. The Task Force's November 18 meeting constituted a violation of KRS 61.810(1) if the less than quorum meetings represented a continuation of the meeting with all members attending, although seated at separate tables, or KRS 61.810(2) if the series of less than quorum meetings collectively attended by a quorum of Task Force members were held to avoid the requirements of the Act. In either case, the law was abridged at the expense of the public's right to know.
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.
Jon L. FleischakerJoseph U. MeyerRandall K. Justice
Footnotes
Footnotes
1 We do not concern ourselves with remedial or conciliatory action insofar as KRS 61.846(2) restricts our review to the question of "whether the agency violated the provisions of KRS 61.805 to 61.850."
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2 Kentucky's courts have recognized that "the right of the public to be informed transcends any loss of efficiency." Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (Ky. 1987).
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