Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Owensboro violated the Open Meetings Act when the City Manager informed four city commissioners of his decision to honor the outgoing mayor by ceremonially naming the Owensboro Riverwalk after him and determined that the city commissioners were not opposed to his plan. For the reasons stated below, we find that no violation of the Open Meetings Act occurred.
Bryan Smeathers (Appellant) initiated an open meetings complaint to the City of Owensboro by letter dated August 24, 2017, based on an article in the December 14, 2016, edition of the Owensboro Messenger Inquirer . In pertinent part, the article stated: "The naming of the river walk in Payne's honor was agreed to by the other four members of the Owensboro City Commission and caught the outgoing Mayor by surprise." The gist of Appellant's complaint was that the Open Meetings Act was violated when the City Manager had discussions with four city commissioners to inform them that he was going to honor the outgoing mayor by ceremonially renaming the Riverwalk after him and install plaques, along the Riverwalk, in his honor. Appellant claimed that the violations included holding a meeting without providing public notice of the meeting, without publishing an agenda of the meeting, without taking minutes of the meeting and spending $ 5,213.26 for bronze plaques and $ 240 in labor costs to mount the plaques at the Riverwalk. Appellant proposed remedying the open meetings violations by having the City Commission publicly apologize for their actions; undergo training on the Open Meetings Act and Open Records Act; give notice of those training sessions to the local newspaper; reprimand the two incumbent commissioners for their open meetings violations; ask for public input on naming the Riverwalk; announce that the manner in which the Riverwalk was named for Mayor Payne was illegal; announce times and dates for two commission meetings for public input on naming the Riverwalk; conduct a third commission meeting to decide the name of the Riverwalk; and review and revise the City purchasing policy to encourage local purchases by the City.
Stephen D. Lynn, Assistant City Attorney, responded to the complaint on behalf of the City. Mr. Lynn explained that the City traditionally recognizes outgoing members of the Board of Commissioners and that, when Mayor Payne decided to retire in 2016, Mr. Parrish, the City Manager, thought that naming the Riverwalk after the former mayor would honor his service. Mr. Lynn explained that the City of Owensboro operates under the City Manager form of government pursuant to KRS 83A.150, "with the City Manager being in charge of the day-to-day operations of the City." The city commissioners often come to City Hall to perform various duties and "[i]n the course of his routine conversations with members of the Commissioners, Mr. Parrish determined that none of the members were opposed to his plan [to honor former Mayor Payne]. The ultimate decision of ceremonially naming the Riverwalk for Mayor Payne was made by City Manager Parrish. Such a decision was made through his authority as City Manager and was not required to be made in the course of a public meeting under KRS 61.800 to 61.850." Mr. Lynn further explained that under the Owensboro Municipal Code, Section 2-146, 1 the City has adopted the procurement provisions found in KRS 45A.345 through 45A.455. Under KRS 45A.385, 2 the City may use small purchase procedures where the contract does not exceed $ 20,000. The Owensboro Municipal Code, Section 2-152(a)(2) 3 requires the City Manager to obtain three price quotes for items over one thousand dollars ($ 1,000) and the City Manager is then to select the one most advantageous to the city. The City explained that it complied with Owensboro Municipal Code, Section 2-152(a)(2) in accepting the bid for the plaques. The City's answer rejected Appellant's remedies for the alleged violations by explaining that the City had not acted in violation of the Open Meetings Act in ceremonially renaming the Riverwalk and purchasing the plaques.
Appellant appealed the City's answer with our Office, asserting that the City Manager's conversations with city commission members constituted illegal meetings as those conversations were with a quorum of the city commission. Appellant also took issue with the actions of the City Manager in his expenditure of public funds and the lack of any mention in the newspaper article 4 of the City Manager's role 5 in the ceremonial naming of the Riverwalk for the former mayor.
Mr. Ed Ray, City Attorney, responded on behalf of the City in answering the open meetings appeal. He opined that the sentence in the newspaper article referenced by Appellant "was not a quote of an official, but rather the commentary of the article's author," and that the article is not sanctioned as an official record of the City. Regarding the events involved in naming the Riverwalk, Mr. Ray explained that the City of Owensboro operates under the City Manager form of government pursuant to KRS 83A.150, "with the City Manager being in charge of the day-to-day operations of the City." Thus it was within the authority of the City Manager to take the actions that led to the ceremonial naming of the Riverwalk after former Mayor Payne and the purchase and installation of the plaques honoring the former mayor.
In regards to the City Manager's conversations with the four city commissioners about ceremonially naming the Riverwalk after former Mayor Payne and installing plaques along the Riverwalk honoring the former mayor, Mr. Ray maintained the City's position that those conversations were not violations of the Open Meetings Act:
In the execution of his duties as City Manager, Mr. Bill Parrish, as is expected of him, keeps the elected officials informed and educated about the City's operations, events, and issues ongoing in the community. This includes informing each of them about certain actions he is planning on taking, events he is authorizing, the order of infrastructure he is planning to service, the state of readiness of the organization, and literally hundreds of other things that are of note in the daily operation of a city of over fifty thousand constituents. It has been established, and just makes sense, that the City Manager may indeed talk to each member of the City Commission on an individual basis and that such discussions do not constitute a meeting within the meaning of the Act. 00-OMD-171, p.2. KRS 61.810(2) (Exceptions to open meetings), specifically states that "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."
We concur with the City that Appellant's complaint refers to KRS 61.810(2) 6 and that his complaint is that the city commission avoided the requirements of the Open Meetings Act through a series of less than quorum meetings where the City Manager had discussions with four commissioners. In 00-OMD-171, referenced in the City's answer, this Office faced a similar question regarding whether the Paducah Board of Commissioners violated the Open Meetings Act where the City Manager turned down a tentative offer of a gift of two surplus barges. In that appeal, the Board explained that the City Manager "had the authority and/or duty, pursuant to ordinance, to determine the acceptability of the possible gift . . . Nevertheless, he contacted the City Commissioners individually and asked their opinions as to whether he should pursue the possibility." This Office determined that, as the City Manager had the authority to make the decision about accepting the gift and decided not to accept the gift, his conversations with the commissioners to ask their opinions was not a violation of the Act. In that decision this Office cited to Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459 (Ky. 1998):
For a meeting to take place within the meaning of the act, pubic business must be discussed or action must be taken by the agency. Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action. Taking action is defined by the Act as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body." KRS § 61.805(3). 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 open meeting requirements of the Act. KRS § 61.810(2).
Id., 474.
We stated, in 00-OMD-171, p. 5, that "Nor can a claim of a violation be sustained when a number less than a quorum, collectively constituting a quorum, meet in a series of meetings, if public business is not discussed or action taken, and the meetings are not held for the purpose of avoiding the open meetings requirements. Public business does not involve, as the Yeoman court observed, any discussion between public officials, but instead involves a 'discussion of the various alternatives to a given issue about which the [agency] has the option to take action.' Yeoman at 474." In that earlier decision, we determined that the conversations between the City Manager and the commissioners were not "discussion[s] of the various alternatives to a given issue about which the [agency] has the option to take action. " Likewise, in this current appeal, the City Manager's conversations with the commissioners were not for the purpose of discussing various alternatives as to how to honor the former mayor, but rather "Mr. Parrish informed them of his decision and determined that none of the members were opposed to his plan." Because the subject discussed was not "public business, " as defined by the Court in Yeoman , the discussions could not have been "held for the purpose of avoiding the requirements" of the Open Meetings Act. The actions of the City of Owensboro therefore cannot be deemed to constitute a violation of KRS 61.810(2), or any other provision of 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 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.
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