Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Mt. Vernon City Council violated the Open Meetings Act in failing to issue a written response within three business days of receiving Don Jones' complaint alleging that on or around December 17, 2009, the City Council violated KRS 61.810(2) by engaging in "phone voting" to approve certain expenditures. Based upon the unrefuted evidence of record, this office finds that the City Council committed two of the three elements of conduct proscribed at KRS 61.810(2) when the Mayor polled each member by telephone regarding the public business of paying bills and the scope of her authority relative to same; however, this office is unable to conclusively determine whether the members of the City Council engaged in this otherwise wrongful conduct for the purpose of avoiding the requirements of the Act. The City Council violated the Act from a procedural standpoint in failing to issue a timely written response per KRS 61.846(1).
In a written complaint regarding "the phone voting last Friday in order for you to pay bills," which Mr. Jones hand-delivered to Mayor Clarice Kirby and each member of the City Council at its regular meeting on December 21, 2009, he asserted "that when a council votes to approve any expenditure it should always be open to the public." Mr. Jones questioned how Mayor Kirby could "be sure who was answering on the other end of the line" and how the "public benefited or [was] informed of the [C]ouncil's vote." Having received no response from the City Council or the Mayor, he initiated this appeal by letter mistakenly dated December 6, 2010, and received in this office January 8, 2010.
In his letter of appeal, Mr. Jones noted that Mayor Kirby was released from jail under specified conditions, one of which, according to the "Conditions of Release and Judicial Decision" attached to Mr. Jones' appeal, was that she have "[n]o access or sole authority to spend or use public funds without approval of elected Council until further orders of court." According to Mr. Jones, "[o]n or about Dec. 17, 2009 the Mayor had the City Clerk poll each of the [C]ouncil members by phone to get authority to pay bills, which in fact did need to be paid." Mayor Kirby apparently "maintained at the meeting on Dec. 21 that she was not absent so therefore she would have to sign the checks for bills." Mr. Jones believed that Mayor Kirby acted improperly in conducting the poll by telephone because "the Mayor should have called a meeting and either let the [C]ouncil [approve] the bills or give her the authority for just those bills in question at the moments. Her release from custody is dated 12/12/09."
Although this office issued a "Notification to Agency of Receipt of Open [Meetings] Appeal" to both Mayor Kirby and City Attorney Jerry J. Cox, on January 8, 2010, which indicated that any response on behalf of the City Council "must be received no later than Tuesday, January 12, 2010," this office did not receive any response as of that date. 1 Consistent with prior decisions by the Attorney General, this office finds that the record on appeal establishes that a "series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute[d] at least a quorum of the members of the public agency" occurred in violation of two of the three elements of KRS 61.810(2). 2 In addition, the City Council further violated the Act in failing to respond upon receipt of his complaint in direct contravention of KRS 61.846(1).
As previously indicated, the City Council violated the Open Meetings Act from a procedural standpoint insofar as the Mayor failed to issue a written response within three business days. More specifically, the procedural guidelines to which a public agency must adhere in responding to complaints are codified at KRS 61.846(1). Upon receiving a complaint submitted under the Act:
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. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer or under his authority, and shall constitute final agency action.
KRS 61.846(1). In construing this provision, the Attorney General has consistently observed:
The statute does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period.
03-OMD-116, p. 2.
Mr. Jones initiated this appeal because he "received no response from anyone" within the statutory time frame. As the Attorney General has consistently recognized with regard to procedural requirements of the Open Records Act, in a statement which applies with equal force to the Open Meetings Act, such requirements "are not mere formalities, but are an essential part of the prompt and orderly processing of an open [meetings complaint]." 93-ORD-125, p. 5; 03-ORD-190. In
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals articulated a demanding standard by which the adequacy of a public agency's response must be judged:
The language of [KRS 61.880(1)/KRS 61.846(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents [or a complaint] . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
See 04-OMD-102; 00-OMD-142; 97-OMD-43. Failure to provide any written response necessarily constitutes a violation of KRS 61.846(1).
The Open Meetings Act prohibits "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 474 (Ky. 1998). Although this office cannot determine their subjective intent, members of the City Council and the Mayor otherwise violated the Act by engaging in a series of less than quorum meetings when the members participating in those meetings by telephone collectively constituted a quorum. Fundamental to our analysis of the primary question presented is the legislative statement of policy codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided by law shall be strictly construed.
When interpreting the provisions of the Open Meetings Act, Kentucky's highest courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing
E.W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990). Resolution of the instant appeal turns on the specific language of KRS 61.810(2).
Since its enactment in 1992, KRS 61.810(2) has been the subject of a number of Open Meetings decisions. Addressing the potential for subversion of the Act inherent with 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, 3 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 00-OMD-63, the Attorney General analyzed this provision in 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, pp. 4-5 (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, supra, 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 KRS 61.805(1) broadly defines "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, " in examining the underlying purpose of KRS 61.810(2) the Supreme Court observed as follows:
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, supra, at 474 (emphasis added). In Yeoman, the Supreme Court held that although a quorum of the members of the state Health Policy Board were present at a national health care conference, the appellant's claim of an open meetings violation was devoid of merit since "the mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim . . . ." Id.; compare 05-OMD-026 (holding that series of less than quorum telephonic meetings between Mayor and members of City Council, which collectively constituted a quorum, held for the purpose of discussing whether to guarantee a loan, otherwise fell within zone of conduct prohibited at KRS 61.810(2) though intent could not be determined); 02-OMD-153 (holding that series of less than quorum telephonic meetings held by City Commission for the purpose of discussing employment status of a city employee otherwise fell within the zone of conduct prohibited by KRS 61.810(2) though intent could not be determined).
A "gathering, " in the relevant sense, can occur by telephone as in this case. 09-OMD-093; 05-OMD-026; 02-OMD-153. However, "[t]here is no statutory authority for a public agency to conduct a meeting, which is required to be open, by telephone. Rather, existing legal authority clearly prohibits this practice." 03-OMD-092, p. 6. See
Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Co., Ky., 554 S.W.2d 72, 73 (1977) (Kentucky Supreme Court affirms a trial court's decision voiding telephone votes of public agency) ; 02-OMD-153; 94-OMD-87; 93-OMD-20; 92-OMD-1728; OAG 92-151. This is consistent with the judicial recognition that the Open Meetings Act "is designed to require government agencies to conduct the public's business in such a way that the deliberations and decisions are accomplished in an atmosphere wherein the public and the media may be present,"
Jefferson County Board of Education v. Courier-Journal and Louisville Times Co., Ky. App., 551 S.W.2d 25, 26 (1977), and the legislative recognition that "the formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.800. Inasmuch as the City Council did not respond to Mr. Jones' complaint either initially or in response to his appeal, the record contains no evidence to refute his implicit assertion that members of the agency contacted by the Mayor collectively constituted a quorum; rather, the conditions of her release specified that she have "[n]o access or sole authority to spend or use public funds without approval of elected Council until further orders of court[,]" which presumably means that she contacted at least a quorum of the agency for approval. The first element necessary for a violation of KRS 61.810(2) is therefore firmly established.
In Yeoman, as indicated, 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." Clearly, discussions regarding the scope of the Mayor's authority in relation to expenditure of public funds and voting by the members of the City Council on that subject fall within the scope of "public business" as defined in Yeoman. The exclusion of the press and the public from these discussions unquestionably establishes the second element of KRS 61.810(2).
A third element is required to conclusively establish that a violation of KRS 61.810(2) occurred - intent. As noted, the Attorney General has consistently acknowledged the difficulties associated with determining the subjective intent of meeting participants, but has generally found that a series of less than quorum meetings otherwise fell within the zone of conduct prohibited by KRS 61.810(2). See 03-OMD-092. If evidence of intent to circumvent the requirements of the Act was adduced, this office has found that meeting participants violated KRS 61.810(2) . See 94-OMD-106. Thus, at page 3 of 94-OMD-106, this office stated that 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. Although "there is no empirical means by which this office can determine the members' intentions," the actions of the City Council, at a minimum, offended two of the three elements of KRS 61.810(2) as the members participating in one or more of the meetings collectively constituted a quorum and they discussed public business other than for strictly educational purposes. 00-OMD-63, p. 6; 09-OMD-051; 03-OMD-092.
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. Don JonesClarice KirbyJerry J. Cox
Footnotes
Footnotes
1 On the afternoon of January 19, 2010, the undersigned counsel received a belated response from Mayor Kirby indicating that she was responding due to having received a corrected version of the Notification by fax on January 15, 2010; however, both notifications indicated that any response was due no later than January 12, 2010. Although Ms. Kirby acknowledged having received Mr. Jones' complaint on December 21, 2009, she offered no explanation for the agency's failure to respond initially other than her belief that "Mr. Jones had his answer" and "there wasn't a need to reply by paper." Mayor Kirby acknowledged that she did "not make a written answer," but noted that Mr. Jones "never came in asking for an answer," a fact which is legally irrelevant.
2 In her belated response to Mr. Jones' appeal, Mayor Kirby defended her actions by arguing that "heavy penalties" would have been "added to the bills for being late" and "[i]n order to have a special called meeting" she would have needed to "give a 48 hour notice, which would have made our payments late." In accordance with KRS 61.823(4)(a), the City Council is only required to provide notice within 24 hours of a special meeting and this rationale does not justify the actions taken regardless. It suffices to say that nothing in the response ultimately provided on behalf of the City Council alters the relevant analysis or the legal effect of the actions challenged.
3 KRS 61.810(1) provides that "[a]ll 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 . . . ."