Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the record on appeal supports a finding that a quorum of the members of the Cumberland City Council violated KRS 61.810(1) by discussing public business following the adjournment of its June 17, 2010, special meeting.
In his June 19, 2010, open meetings complaint directed to Mayor Loretta Cornett, Councilman Carl Hatfield alleged that after adjournment of a special meeting to discuss Resolution 372, and his departure, a quorum of the members of the Council discussed his impeachment. In her June 21 response, Mayor Cornett advised Mr. Hatfield that "the one and only item on the agenda or discussed was Resolution 372 (money for sidewalks)." In her June 30 supplemental response to Mr. Hatfield's open meetings appeal to this office, Mayor Cornett suggested that "it would be considered unreasonable for someone to think that there would be any way of controlling alleged private conversations taking place between members of council after a meeting is adjourned and all members are walking toward a single door. " Because the 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 meetings requirement of the Act,"
Yeoman v. Commonwealth, 983 S.W.2d 459, 474 (Ky. 1998), we do not consider it unreasonable for members to avoid private discussion of public business, including the impeachment of a council member, wherever and whenever those discussions occur.
KRS 61.810(1) requires "[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" to be conducted in public. In Yeoman, above at 474, the Kentucky Supreme Court defined "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action." The Open Meetings Act defines "meeting" at KRS 61.805(1) as " all gatherings of every kind, including video teleconferences, 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. " (Emphasis added.) Although the Cumberland City Council is not vested with authority to impeach a councilmember, 1 it does have the power to remove a councilmember, and the discussion which took place among a quorum of the councilmembers as they "walked toward a single door" was therefore a matter "about which the [council] has the option to take action" pursuant to KRS 83A.040(9). Neither the place where the meeting was held nor the timing of the meeting alters our analysis. The Act expressly provides that a meeting can occur regardless of where it is held and whether in anticipation of or in conjunction (jointly) with a regular or special meeting. To hold otherwise would defeat the purpose for which the Open Meetings Law was enacted by enabling public officials to formally or informally discuss public business before or after the public meeting occurs.
It is for this reason that the Attorney General has, on at least three occasions, recognized that if a public agency held post-adjournment discussions of public business their conduct violated KRS 61.810(1). See 98-OMD-74; 08-OMD-115; 08-OMD-234. Although the conflicting evidentiary records in those appeals precluded this office from conclusively determining that the alleged open meetings violations had occurred, here the evidentiary record is not in dispute. Mr. Hatfield alleges, and Mayor Cornett does not dispute, that a quorum of the council members discussed his impeachment (removal) after the June 17 meeting adjourned and he left the building. This post-adjournment discussion of public business by a quorum of the members of the Cumberland City Council constituted a violation of KRS 61.810(1). A quorum of the members of a public agency, or members meeting in less than a quorum to avoid the requirements of the Open Meetings Act, but collectively constituting a quorum, are prohibited from conducting "private conversations" concerning public business including, but by no means limited to, the removal of a councilmember.
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.
Carl HatfieldLoretta CornettSteven Parker Boggs
Footnotes
Footnotes
1 See Chapter 63 of the Kentucky Revised Statutes. The power to impeach is reserved to the General Assembly.