Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Pulaski County Fiscal Court violated the Kentucky Open Meetings Act in appointing members to an advisory committee during a closed session. By letter directed to Presiding Officer/Pulaski County Judge-Executive Barty Bullock on October 13, 2013, Malcolm Y. Smith alleged that during a Fiscal Court meeting "you or someone appointed by you, in executive session, appointed a committee and a chairperson to explore renovation of the Fountain Square." To remedy this alleged violation, he proposed that "the committee discuss at a future meeting, and any other closed meetings, in an open and public session [], those matters that were discussed at the improperly called closed meeting occurring during the past year of 2013 regarding the actions of the Fountain Square Committee." Mr. Smith also requested that "[a]ny action taken as a result of the improper sessions should be declared null and void." As of October 20, Mr. Smith had received no written response to his October 13 complaint; accordingly, he initiated this appeal by undated letter, which this office received on October 23. Given the limited and conflicting evidence presented as to whether the Fiscal Court did, in fact, hold a closed session (s) during which it appointed members of the advisory committee and/or discussed the "actions" of the "Fountain Square Committee," this office is unable to conclude that a violation of the Open Meetings Act was committed. KRS 61.815(1) prohibits any final action such as the appointment of committee members during a closed session; likewise, any such discussion would not be authorized under KRS 61.810(1)(a)-(n).
Upon receiving notification of Mr. Smith's appeal from this office, Deputy Judge-Executive Rita A. Curry responded on behalf of the Fiscal Court, by letter dated October 25, initially advising that Judge Bullock "has just been released from the hospital and is facing a serious and potentially life-threatening surgery." Deputy Judge Curry further explained that she opened Mr. Smith's complaint letter "after it became apparent that Judge Bullock would not be in the office for at least a week." 1 Having reviewed all of the minutes from the 2013 Fiscal Court meetings, Deputy Judge Curry found no reference to formation of the advisory committee. According to Deputy Judge Curry, however, the Fiscal Court has never gone into closed session for any reason "other than land acquisitions, pending litigation, or the discipline of an employee" and on each occasion "it was announced prior to an executive session by our county attorney and followed by our county attorney's announcement once again as to the reason for the executive session and the fact that no action was taken." Deputy Judge Curry advised that she responded to Mr. Smith's complaint immediately after speaking with the Community Development Director about formation of the advisory committee. "The entire project was laid out in its entirety long before the advisory [committee] was formed as every element required approval from the Kentucky Heritage Foundation." Further, the advisory committee had no authority to make decisions; the committee was "only permitted to make suggestions."
All meetings of the advisory committee, Deputy Judge Curry explained, were held in the Fiscal Court meeting room "with the doors open and visitors welcomed." The committee was comprised "of citizens who expressed an interest in the project and volunteered to serve." 2 Deputy Judge Curry advised that no committee was required; a vote by the Fiscal Court was not required for approval; the committee had no authority to act; no "closed meeting" occurred; 3 there was "no need for to [sic] 'explore renovation' of the square as the project had already been approved and funded" and the "architectural design was completed and displayed in the courthouse"; no "improperly called meetings" were held; and "there are no actions to declare null and void" as the committee was not authorized to take "action." 4
On October 28, this office received a copy of the Fiscal Court's initial response to Mr. Smith's complaint, dated October 21. In that letter Deputy Judge Curry advised him "that there was no closed executive meeting in which an advisory committee was appointed, therefore there was no violation" of the provisions of the Open Meetings Act. Meetings of the advisory committee were held in the Fiscal Court meeting room and were open to the public. Because the Fiscal Court did not conduct any closed session for the purpose of appointing the committee, there was no requirement to appoint such a committee, and the meetings of the committee were open to the public, she asserted, "there is no violation to be corrected by this administration."
The fundamental mandate of the Open Meetings Act, codified at 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[.]" Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of a public agency at which either public business is discussed 5 or action is taken. KRS 61.820 provides that all meetings of all public agencies, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public." It further mandates that all public agencies "provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. " But see 12-OMD-181(even assuming the Screening Committee lacked sufficient business to justify meeting on a regular basis, it was required, in the alternative, to comply with all notice requirements for special meetings codified at KRS 61.823 as every meeting is either a regular meeting or a special meeting) (copy enclosed) . The term "meeting" is broadly defined at KRS 61.805(1) 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. " Thus, all gatherings of a quorum of the Fiscal Court, or the advisory committee, for that matter, at which any public business was discussed or action was taken were meetings of a public agency subject to provisions of the Open Meetings Act, including KRS 61.820, above, 61.835 (requiring that minutes of meetings be promptly recorded and open to public inspection by the next meeting of the agency), and 61.815 (requirements for conducting a closed session) . See 06-OMD-068 (advisory role of committee does not alter the analysis)(copy enclosed) .
Recognizing that extraordinary circumstances occur which might justify a public agency in conducting public business during a closed session, the General Assembly created a number of exceptions to the general rule codified at KRS 61.800, which are codified at KRS 61.810(1)(a)-(n). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1), pursuant to which a public agency is required to satisfy the following requirements before conducting closed sessions authorized by KRS 61.810: (a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session; (b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session; (c) No final action may be taken at a closed session; and (d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
In construing KRS 61.815, 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, 955 S.W.2d 921, 924 (Ky. 1997) citing
E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 1990). Consequently, "the courts of the Commonwealth [and this office] must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id . Rejecting the Board's argument that it had substantially complied with requirements for conducting a closed session, the Ratliff court reasoned that "prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed[.]" Id . at 924. Regardless of whether discussion(s) was actually restricted to a permissible subject identified at KRS 61.810(1)(a)-(n), discussions between a quorum of the Fiscal Court members (or a quorum of the advisory committee members), if any , "concerning matters not identified in the open meeting with proper notice [were] a violation of the Open Meetings Act and constitute[d] illegal conduct. Id . In the absence of any evidence to refute Deputy Judge Curry's assertion that proper notice was given prior to any closed sessions held, and that no closed session was held at which members of the advisory committee were appointed, this office has no basis upon which to find that KRS 61.815(1) was violated or that subjects not authorized under KRS 61.810(1)(a)-(n) were improperly discussed in a closed session.
As the Attorney General has consistently recognized, the role of this office in adjudicating a dispute arising under the Open Meetings Act is narrowly defined by KRS 61.846(2), pursuant to which the Attorney General "shall review the complaint and denial 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." Our decisions "involve the application and interpretation of the requirements of the Open Meetings Act, and are in the nature of questions of law." 00-OMD-142, p. 6. As with appeals arising under the Open Records Act, "this office is not empowered to resolve disputes of a factual nature in the context of an Open Meetings appeal." 10-OMD-135, p. 3; 11-OMD-023. Our review is confined to the written record. See 00-OMD-96; 05-OMD-198. The Attorney General "does not conduct hearings, gather evidence, conduct witness interviews, etc. in resolving disputes arising under the Open Meetings Act [.]" 10-OMD-135, p. 4. As in 05-OMD-096, 07-OMD-253, and 08-OMD-234, to name a few, this office is presented with two widely disparate narratives and is unable to conclusively resolve the related factual discrepancy as to whether the Fiscal Court actually held a closed session (s) during which it appointed members of the advisory committee and/or improperly discussed the renovation of the Fountain Square. See also 09-OMD-014; 10-OMD-124. Any such action by the Fiscal Court during a closed session was prohibited under KRS 61.815(1)(c); likewise, any such discussion was not authorized under KRS 61.810(1)(a)-(n) and thus would have violated the 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.
Distributed to:
Malcolm Y. SmithBarty BullockRita A. CurryMartin Hatfield
Footnotes
Footnotes
1 The record is unclear as to exactly when the complaint of Sunday, October 13, was actually received. If the presiding officer, i.e., the Judge-Executive, or someone acting "under his authority" did not issue a written response within three days, excluding weekends and legal holidays, which Deputy Judge Curry seemed to acknowledge, it violated KRS 61.846(1), albeit minimally; however, its response (dated Monday, October 21) was timely if sent via U.S. mail on the third business day after the request was actually received. See 04-OMD-199 (applying computation of time provision codified at KRS 446.030(1) in determining that response to complaint on fourth business day was untimely under KRS 61.846(1) and implicitly recognizing that a response issued on third business day after complaint was received would have been timely); 11-OMD-136; 13-OMD-14.2
2 Public agency" is broadly defined at KRS 61.805(2). In Lexington-Herald Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886, the Kentucky Supreme Court determined "that [KRS 61.805(2)] . . . means that a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency." The Fiscal Court has not disputed the status of the advisory committee nor would such a claim likely succeed. Assuming the advisory committee is a "public agency," it was required to comply with provisions of the Open Meetings Act by providing notice of its regular and special meetings, recording minutes thereof, etc. See 10-OMD-114.
3 Insofar as Deputy Judge Curry is referring to meetings of the advisory committee, this office must assume that proper notice was provided in accordance with KRS 61.820 and/or 61.823 as merely holding the meetings in the Fiscal Court meeting room and welcoming visitors/having the door open would not suffice.
4 Mr. Smith proposed that the "committee discuss at a future meeting, and any other closed meetings . . . . those matters that were discussed at the improperly closed meeting" of the Fiscal Court regarding the actions of the committee and that actions taken "as a result of the improper sessions" of the Fiscal Court be declared null and void. Inasmuch as he challenged the actions of the Fiscal Court in holding the allegedly improper closed session(s), he was apparently proposing that actions by the Fiscal Court resulting therefrom be declared null and void.
5 In Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."