16-OMD-222

16-OMD-222

October 11, 2016

In re: Abigail Whitehouse/ Lincoln County Ambulance Board

Summary:        Lincoln County Ambulance Board violated KRS 61.846(1) by failing to make a written response to a complaint under the Open Meetings Act.  Although Board members may have conducted non-public discussions of public business via email, telephone, and in person, there was insufficient documentation in the record to support a violation of KRS 61.810(1).

Open Meetings Decision

        The question presented in this appeal is whether the Lincoln County Ambulance Board violated the Open Meetings Act when Board members conducted non-public meetings through the exchange of emails, by a telephonic conference call, and by meeting in person.  We find that the Board violated KRS 61.846(1) when it failed to respond in writing, and within three business days, to the open meetings complaint in which this violation was alleged. We further find that although Board members may have conducted non-public discussions of public business via emails, telephonically, and in person, there is insufficient evidence in the record to conclusively determine that a quorum of the Board attended those various meetings.

        On July 25, 2016, Abigail Whitehouse, Editor, The Interior Journal, Stanford, Kentucky, requested email records from the Lincoln County Ambulance Board (Board) regarding Board “members discussing the budget proposal from the Lincoln County EMS Consolidation Committee.”  After receiving the records from the Board, Ms. Whitehouse sent a letter to the Board on September 1, 2016, wherein she made a complaint to Chairman Jerry Shelton pursuant to KRS 61.846. Ms. Whitehouse’s appeal stated that the Board was a public agency subject to the Open Meetings Act because it is a “’body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government.’  KRS 61.805(e).”  Ms. Whitehouse then went on to explain the facts and statutes supporting her opinion that the Board had failed to comply with the Open Meetings Act.  Ms. Whitehouse also stated what actions the Board should take to remedy the alleged violation. Ms. Whitehouse appealed to this office on September 26, 2016, stating that she had not received a written response to her Open Meetings complaint to the Board. A copy of the appeal was forwarded to the Board on September 29, 2016, but no written response to the appeal was ever received by this office.  This office received a telephone call from Board Chair Jerry Shelton on September 30, 2016, in which he confirmed that the Board is composed of seven members and that four members constitute a quorum of the Board.

        Email Meetings. Ms. Whitehouse provided emails from her Open Records Request which she asserted demonstrated a discussion of public business in a non-public forum. She cited an email from July 24, 2016, sent by Board member Robert Floro, to fellow Board members Naren James, Ted DeFosset, and Jimmy Lane as an instance where the Board violated the Open Meetings Act.  In that email, Mr. Floro gives his opinion on the budget that he had attached to the email regarding the Lincoln County EMS Consolidation Committee, and poses questions that he plans to direct to the county attorney and county Judge-Executive regarding the proposed 2016 tax rate.  Those questions include various scenarios about tax rate increases and the potential consequences of those scenarios.  Board member Theodore DeFosset responded to the email by thanking Mr. Floro, but there were no other emails responding to the July 24, 2016, email.

        In 14-OMD-015, this office confronted a similar situation in which the Chairman of the Menifee County Board of Education had attempted to draw a quorum of board members into an email discussion of board business. This office found that it would have been a violation of KRS 61.810(1), “had a quorum of the Board responded to his [the Chairman’s] email by commenting on payment of claims.”  In the present case, with the email of July 24, 2016, there is insufficient evidence in the record to determine that a quorum of the Board responded to Mr. Floro’s discussion of tax increase issues.  Likewise, in emails from Board member Theodore DeFosset, on July 14, 2016, to Board members Floro and James, and on July 19, 2016, from Mr. Floro, there is a lack of evidence that a quorum participated in discussion of public business.  There is certainly an inference that could be drawn from the emails provided to this office that members of the Board have violated the requirements of the Open Meetings Act, but the evidence on the record in this appeal marginally fails to transform that inference into a definite conclusion.    

        In-Person Meeting. In Mr. Floro’s email of July 19, 2016, (Subject: Meeting), he calls for a meeting at Board member Naren James’ office in Stanford on July 20, 2016. This particular email does not indicate to whom the email was sent, but there is a response from Board member DeFosset saying “Sounds good, thnx.”  Mr. Floro’s email of July 19, 2016, states:  “Folks, We will get together in Dr. James’ office in Stanford tomorrow (Wednesday) evening at 6 pm. Remember, according to KY Open Meetings Law, we are only there to share ideas and educate each other – NOT to make any conclusive decisions! Will explain tomorrow evening.”  If a quorum of the Board met on July 20, 2016, in response to the invitation from Mr. Floro, that meeting would have constituted a violation of the Open Meetings requirements for a special meeting as set forth in KRS 61.823.  Despite Mr. Floro’s claim that merely sharing ideas and educating each other would not have been violative of the Open Meetings Act, it is clear that such sharing of ideas would likely have constituted a discussion of public business.  KRS 61.810(1)¹ clarifies that a public meeting includes one at which public business is discussed, not merely one where action is taken.  From the context of the email, it appears that the invocation of the “Open Meetings requirements” by Mr. Floro indicates that a quorum of the Board was expected to attend, but the record lacks sufficient certainty for this office to determine that a quorum actually attended the July 20, 2016, meeting, and we cannot conclude that the Open Meetings Act was violated.  

        Telephonic Meeting. The emails provided to Ms. Whitehouse indicate that members of the Board conducted a non-public telephonic conference call on April 30, 2016. The emails contain an invitation to call a telephone number on Thursday, April 30, 2016, at 2:30 p.m. and use the provided access code to join the call. Mr. Floro is listed as the organizer for the call and the subject was “Call to discuss Lincoln County ambulance service.”  Ms. Whitehouse concluded that Board members Floro, DeFosset, and James were aware of the telephonic meeting but could not verify from the emails whether other board members attended the telephonic meeting.  Just as with the email issue discussed above, if a quorum of the board engaged in a discussion of public business in the telephonic meeting scheduled for April 30th, it would have constituted a violation of the Open Meetings Act as the meeting was not in conformity with the requirements for a special meeting (notice to public and media, at a time and place convenient to the public, etc.) as required by KRS 61.823.

        We find that the Board violated KRS 61.846(1) by the failure of the Board to notify Ms. Whitehouse, within three days after receipt of her complaint, of its decision as to whether it would remedy the alleged violations pursuant to her complaint.  Further, we find that board members’ participation in email, telephonic, and in-person meetings would have constituted violations of KRS 61.810(1) had the evidence on the record been sufficient to document that a quorum engaged in the various email, telephonic and in- person discussions that appear to have taken place.

        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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

                                                Andy Beshear        

                                                Attorney General

                                                Gordon Slone

                                                Assistant Attorney General

#390

Distributed to:

Abigail Whitehouse

Jerry Shelton

Hon. Daryl Day