Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Clark County Board of Education ("the Board") violated provisions of the Open Meetings Act when, at a June 10, 2013, special meeting, it allowed Board member Michael McGowan to attend via audio speakerphone. For the reasons that follow, we find that Mr. McGowan's attendance by speakerphone contravened the Act if, and to the extent that, he participated in a vote.
In a complaint to Board Chairman Dr. Michael Kuduk, which he received on June 13, 2012, Board member Judy Hicks alleged that Mr. McGowan's participation by speakerphone violated the Open Meetings Act. She listed several proposals for remedying the alleged violation.
On June 18, 2013, Dr. Kuduk replied that he was contacting the Office of the Attorney General "for their recommendations regarding which aspects of the law were violated (if any), and what the specific remedies (if any) should be." Ms. Hicks thereafter received a copy of a June 28, 2013, letter to this office from the Board's attorney, Henry L. Rosenthal, Jr., setting out more details of what occurred at the June 10 meeting.
Mr. Rosenthal stated that the special meeting was for the purpose of allowing the Board members to interview two candidates for the position of superintendent of the Clark County School District. Three Board members were physically present, constituting a quorum, and Mr. McGowan was on a speakerphone due to a military obligation he was fulfilling at Fort Knox. Ms. Hicks questioned the propriety of Mr. McGowan's presence on the telephone. Mr. Rosenthal gave his opinion that it was legal for Mr. McGowan to participate in a closed session, but Ms. Hicks disagreed and left the meeting because she considered it unlawful. The two Board members remaining at the meeting decided that a quorum was no longer present, and consequently no interviews took place and no public business was discussed; rather, the special meeting was rescheduled for the following day.
Ms. Hicks appealed to this office on July 11, 2013. A response to her appeal was made by Dr. Kuduk on July 16, 2013. Dr. Kuduk adds the following information:
Immediately after the meeting was called to order, Ms. Hicks questioned the legality of having Mr. McGowan participate via telephone. At that point, I telephoned our Board Attorney, who, after several minutes of conversation, decided to come in to assist the Board. We then waited for another 15 to 20 minutes for Mr. Rosenthal to arrive. During that interval, no school related business was discussed with the interview candidate, or amongst Board members. After Mr. Rosenthal's arrival and further discussion, Ms. Hicks left at 6:35 PM. Mr. Rosenthal followed Ms. Hicks to the parking lot, and was away for several minutes, leaving myself, [another Board member,] our superintendent candidate, and Mr. McGowan, who was still on speakerphone. It should be noted that no further Board business occurred at this point. It should also be noted that no interview questions were asked of the candidate at any time during this entire meeting. Ms. Hicks can attest to the veracity of this statement during the time frame when she was present, and the candidate can attest to the veracity of this statement when Ms. Hicks was not present. ? After Mr. Rosenthal returned, our candidate agreed to return the next evening for his interview, and Mr. McGowan's connection was terminated. Since we had a second candidate which [ sic ] was to interview that evening who could not be reached by cell phone, I needed to stay until approximately 7 PM in order to inform the second candidate of the need to reschedule her interview. Mr. Rosenthal and I then left.
None of the facts alleged by Ms. Hicks contradict any of the specific statements made by either Dr. Kuduk or Mr. Rosenthal.
There is, however, one factual discrepancy between Dr. Kuduk's and Mr. Rosenthal's accounts. Dr. Kuduk, who was present at the beginning of the meeting, states that Ms. Hicks' objection and his phone call to Mr. Rosenthal occurred "[i]mmediately after the meeting was called to order." Yet Mr. Rosenthal, who was not there, states: "Mr. McGowan, not being present in person, but [ sic ] voted to approve the agenda. "
Meanwhile, Ms. Hicks, who was present, has said nothing directly about whether Mr. McGowan voted to approve the agenda. She did state in her complaint that when Dr. Kuduk announced that "Mr. McGowan would be participating via conference call," she questioned the legality of the procedure, and that when "[t]he meeting adjourned to closed session ? at 6:04 pm" she requested that Mr. Rosenthal be contacted for clarification. Since the approval of the agenda is a matter which would presumably have occurred in open session, this would be consistent with Mr. Rosenthal's non-eyewitness account that a vote took place.
If Mr. McGowan did in fact vote on the matter of approving the agenda, that would constitute a violation of the Open Meetings Act. It is well established that "an absent member cannot be counted as part of a quorum [and] cannot vote even though he or she is constructively present by audio connection." 02-OMD-206 (copy attached). This is not to say that the law prohibits an absent member from listening to the proceedings from a remote location, but "audio (telephonic) participation " by a member is unlawful unless it complies with the procedures for video teleconferencing enacted in 1994 and set forth in KRS 61.826. Id. (emphasis added); see also OAG 92-151 and authorities cited therein.
Other than the possible vote on approving the agenda, it appears that no public business was discussed, nor action taken, while Mr. McGowan was on the speakerphone. Furthermore, the Board properly conducted no business after Ms. Hicks exited the meeting, leaving only two Board members physically present. Although the rescheduling of the special meeting to the next day was discussed with Mr. McGowan and the two Board members who were present, this did not amount to a "substantive discussion" of public business that would implicate the Open Meetings Act. 13-OMD-086; see also
Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998) (defining "public business" as "the discussion of the various alternatives to a given issue about which the board has the option to take action"). Therefore, we find no violation of the Act except to the extent that Mr. McGowan may have voted on approving the agenda.
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.
Distributed to:
Ms. Judy HicksDr. Michael K. KudukHenry L. Rosenthal, Jr., Esq.