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 disputed record on appeal does not conclusively support a decision that the Louisville and Jefferson County Metropolitan Sewer District violated provisions of KRS 61.800 to 61.848 prior to, and in the course of, its October 11, 2010, meeting at which it approved the Billtown Recapture LLC Agreement. In so deciding, we acknowledge the frustrations inherent in a review based entirely on a disputed written record, particularly where that review yields a decision that is at odds with the clearly expressed legislative statement "that the formation of public policy is public business. " KRS 61.800.
In an October 21, 2010, complaint directed to Audwin Helton, Chairperson of MSD's Board of Directors, Floyds Fork Environmental Association Vice-President Teena Halbig alleged that the Board violated KRS 61.810(1) and/or (2) by "formulating public policy in secret meetings in which the details of the Billtown Recapture Agreement were discussed between Board members and MSD Executive Director Bud Schardein and staff. " It was Ms. Halbig's position that the Board members "reached a public policy decision to approve the action before coming into open session and voting without any discussion" of the need to obtain approved lateral service agreements, the relationship between the action and the federal consent decree and CMOM 1 program, and the required treatment capacity or trunk conveyance capacity. In support, she referenced a portion of the transcript of the October 11 meeting in which Chairperson Helton responded to a question concerning information utilized by the Board in reaching its decision, stating, "We have all the information we had there . . . and we talked to Bud about it."
Additionally, Ms. Halbig complained that federal and state laws concerning the Clean Water Act "require meaningful public consultation and pre-decision public comment, " and that the Board acted at its October 11 meeting "without public consultation or comment" and approved an agreement "that was first distributed to the public about four days prior." She maintained that KRS 61.800 "required the Board to allow and hear public comment at the public meeting on October 11." As a means of remedying these violations, Ms. Halbig proposed that the Board provide her with records "relevant or material to the Billtown Recapture Agreement," including records "showing the nature and dollar amount of the financial or business interest of MSD Board member Charles Weiter or any other Board member, in any property or development in the project area . . . ." Additionally, she asked that the Board void the decision to approve the agreement and "set a public hearing date with prior disclosure in compliance with Clean Water Act public notice and hearing requirements." Finally, Ms. Halbig requested that the Board revise its public comment policy for open meetings to eliminate the requirement of prior written application to speak.
In an October 28 response, MSD Board counsel Larry Zielke denied the allegations of Ms. Halbig's complaint asserting that his client "satisfied the requirements of the Open Meetings Act" at its October 11 meeting and did not violate the Open Meetings Act at any other unidentified meeting. Specifically, Mr. Zielke observed:
The October 11, 2010, Board Meeting was a regularly scheduled meeting announced on calendars, websites, and at other meetings. All members of the public could attend. The agenda and Board packet was provided. All topics announced on the agenda were discussed in public and all action was taken in open session. The minutes reflect all votes and all actions. (A copy of the minutes is attached.) You attended the entire meeting.
In your letter, you criticize the Board for not discussing particular topics. . . . The Open Meetings Law, however, does not require that the Board address certain topics only that the topics it does address occur in public. Likewise, the Open Meetings Law does not incorporate the Clean Water Act or sections of the Kentucky Administrative Regulations regarding Total Maximum Daily Loads or the Code of Federal Regulations regarding effluent limitations. Your letter intimates that the Board may have met to discuss the Billtown Recapture Agreement in a secret meeting. Not only was the October 11, 2010, Board meeting an open meeting, but all other Board meetings have been open. No secret meeting occurred. The Board has not formulated public policy in secret meetings or discussed the details of the Billtown Recapture Agreement in secret meetings. The Agreement was not approved prior to the Board Meeting that you attended.
With reference to the statement attributed to Mr. Helton upon which Ms. Halbig relied in framing her complaint, Mr. Zielke observed:
Your taped comments of Mr. Helton taken between the open and closed session of the Board Meeting do not indicate that any secret meeting occurred. Mr. Helton told you over your interruptions that he had reviewed the Board Packet prior to the Board Meeting. He attempted to tell you that, generally, if he, or any Board member, requires more information after reviewing a Board Packet, they are able to ask Bud Schardein for that information. Requesting information from a staff member does not violate the Open Meetings Law and is explicitly stated in the Open Meetings Law as an exception: "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." KRS 61.810(2).
He then proceeded to refute each of the numbered paragraphs of Ms. Halbig's complaint except where the paragraph consisted entirely of an accurate statement of law.
On appeal, Ms. Halbig argues that Mr. Zielke erroneously maintains that "MSD may circulate written memorandum [sic] setting forth an incomplete statement of facts supporting the Executive Director of MSD's desired action to the Board, and may discuss the action and answer questions of the Board members about the matter in private meetings, and that the Open Meetings Act is not violated when the action is then voted upon without any discussion between Board members at the open meeting. " In supplemental correspondence directed to this office, Mr. Zielke characterizes this statement as "factually untrue" and unsupported, reasserting that "no such private meetings ever took place." Further, he asserts, nothing in the Open Meetings Act "prevents an individual Board member from discussing issues where the purpose of the discussion is to educate the Board members," 2 or "requires questions and discussions on each and every board action." Because the Board members "are well acquainted with the recapture agreement [sic] in general and the infrastructure plans in the Billtown area specifically," Mr. Zielke suggests that no discussion was necessary, emphasizing that the Board has "the discretion to take action on an agenda item without discussion."
While the Open Meetings Act strongly favors the formation of public policy in a public forum, discouraging conduct that is detrimental to that policy, 3 violations of the Act are premised on secret meetings of a quorum of the members of the agency at which public business is discussed or action is taken and meetings of numbers less than a quorum held for the purpose of avoiding the open meetings requirements of the Act. KRS 61.810(1) and (2); Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998). The Act does not explicitly or implicitly prohibit the conduct alleged and refuted in this appeal. Although it goes without saying that questions posed by Board members to MSD staffers could just as easily be posed in a public forum, affording the public the same opportunity as the members to educate itself on matters before the Board, the Act does not prohibit questions aimed at education but is instead aimed at the formation of public policy through, for example, brokering deals, lobbying, influence peddling, or other forms of nonpublic "consensus building." No doubt, the line of demarcation between such discussions is a fine one, and discussions aimed at education may occasionally exceed their intended scope. In the latter case, the less than quorum discussions violate KRS 61.810(2) if the members attending one or more collectively constitute a quorum and are held for the purpose of avoiding the requirements of KRS 61.810(1). The appeal before us does not present this scenario.
In 08-OMD-162, a copy of which is attached hereto, the Attorney General determined that because there was no evidence in the record that a quorum of a city commission and a fiscal court 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, he could find no violation of the Act "where the purpose of the series of less than quorum meetings and discussions was to educate the members." At page 4 of that decision, we quoted extensively from an unpublished Court of Appeals opinion addressing this question:
In Elm Street/McCracken Pike Preservation Alliance, Inc. v. Siegelman, No. 2005-CA-002079-MR (Ky. App. Nov. 2, 2007), 4 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. Citing KRS 61.810(2), the Court stated:
Relying on this analysis, we affirmed the actions of the public officials against whom the complaint was brought, noting in the concluding substantive paragraph:
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.
08-OMD-162, p. 5.
MSD flatly denies that any discussions between Board members or Board members and staff took place prior to the October 11 meeting at which the Recapture Agreement was approved, focusing on the members' broad familiarity with the agreement and Billtown infrastructure plan. Ms. Halbig offers no persuasive evidence to refute this statement. Where no public discussion is necessary, the Open Meetings Act does not impose the requirement that one be conducted. While we are perhaps less sanguine about this prospect than the Siegelman court, we cannot read a requirement into the Open Meetings Act where none exists or find a violation where none has been committed. We trust that MSD fully appreciates the importance of keeping the public, as well as its Board members, fully informed on all matters upon which it is charged to act.
We dispense with Ms. Halbig's complaint relative to her right of comment and entitlement to a "public hearing" with admitted alacrity. In 00-OMD-65, this office was asked to adjudicate a dispute involving the adequacy of legal notice for a public hearing. At page 3 of that decision, we observed:
[T]he Attorney General is not charged with the duty to interpret and enforce the requirements for legal notices codified in KRS Chapter 424, and in particular KRS 424.130, in an open meetings appeal. Where, however, a quorum of the members of a public agency meet to discuss public business or to take action, and a complaint is made concerning the conduct of that meetings, KRS 61.846(2) mandates that "the Attorney General shall review the complaint [and the agency's response thereto] and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." When these laws intersect, our analysis is confined to issues relating to the propriety of the agency's actions under the Open Meetings Act.
00-OMD-65, p. 3, 4. By the same token, the Attorney General is not charged with interpretation or enforcement of the federal and state laws governing public hearings under the Clean Air Act, and the latter Act cannot reasonably be construed to impose a right of public comment on the existing statutory scheme. As we have so often recognized, the Open Meetings Act invests the public with the right to listen with its ears and see with its eyes. It does not invest the public with the right to participate by comment or impose a corresponding duty on the public agency to permit such comment. Accordingly, we find that the second allegation of her open meetings complaint is not justiciable under the Open Meetings Act.
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.
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