Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Louisville/Jefferson County Metro Government ("Louisville Metro") violated the Open Meetings Act in creating an ad hoc committee of employees and members of the public to evaluate and report on a proposal. We find that the ad hoc committee created is a public agency under KRS 61.805(2), and was required to comply with the Open Meetings Act. In the committee's failure to comply, Louisville Metro violated the Open Meetings Act.
WDRB News submitted an open records request to Louisville Metro on November 29, 2017, requesting "documents giving public notice of all regular and/or special meetings of the committee that evaluated proposals for the property known as Heritage West," "minutes of the meetings described above," and "any other records identifying the members of the committee." Louisville Metro denied the request on December 11, 2017, asserting the preliminary documents exemptions in KRS 61.878(1)(i) and (j), and stating that "the only responsive documents to your request are confidentiality agreements signed by the evaluators."
On December 26, 2017, WDRB submitted an open meetings complaint to the general counsel of Louisville Metro, stating that it "believes the committee is a public agency . . . and should comply with the open meetings requirements." 1 Louisville Metro responded to the complaint on January 5, 2018, stating that the Open Meetings Act does not apply on the grounds that:
The selection group is not a body created by 'or pursuant to local statute, executive order, ordinance, resolution or other legislative act in the legislative or executive branch of government." . . . The facts and circumstances of a group not created by any official act of the executive or legislative branches of government that is reviewing a routine procurement is vastly different than a group created and directed by the General Assembly . . . .
WDRB appealed Louisville Metro's response to this office on January 9, 2018. This office initially rejected the appeal as unperfected on January 19, 2018, as it was not sent to the presiding officer of the committee as required by KRS 61.846(1). WDRB sent an email to Louisville Metro on January 29, 2018, stating that he had met with members of Louisville Metro and was directed to file the complaint with Louisville Metro's general counsel, and attached an identical open meetings complaint addressed to the presiding officer/ chairperson of the Committee reviewing proposals for Heritage West. On February 2, 2018, Louisville Metro responded on February 2, 2018, directing WDRB to file the complaint with the Director of Procurement, as "the group does not have a presiding officer as it is not a formal 'committee.'" The record does not contain any further responses by Louisville Metro or further complaints by WDRB.
WDRB initiated this appeal on February 23, 2018, stating:
This committee included city government workers and private citizens who were recommended by elected Metro Council members; reviewed proposals submitted by developers for Heritage West, and ultimately recommended a developer to Mayor Fischer.
Louisville Metro responded to the appeal on March 2, 2018, stating:
Louisville Metro also emphasized the need for confidentiality in procurement, and cited to 09-OMD-056 in support of its position that the evaluation team is not a public agency.
KRS 61.805(2)(g) provides that "public agency" includes "any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency . . . established, created, and controlled by a 'public agency. '" 2 In OAG 94-25, an advisory opinion, we recognized that "our open meetings law is intended to provide public access to meetings of decision-making bodies, and it is not intended to provide public access to the day-to-day administrative work of a public agency. " We defined "public agency" as "a group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it." Id. "OAG 94-25 presumes a case-by-case application of general principles to individual committees." 16-ORD-101. See generally 15-OMD-155 (comparing decisions).
Applying the factors in OAG-94-25 to this case, the Heritage West committee was a group of persons acting as a unit, and were delegated the responsibility to consider a specific matter--the Heritage West proposal--and report back on that specific matter. The Heritage West committee thus meets the factors for a public agency established in OAG 94-25. It is an "ad hoc" committee established by Louisville Metro to evaluate proposals, and report back its recommendations to Louisville Metro.
We have previously held that ad hoc committees created by local governments for a specific purpose, which include members of the public, have functioned as public agencies. In 98-OMD-96, a city zoning administrator organized "a citizens committee to help update our present sign ordinance, " which ultimately consisted of several public officials and local residents who were recommended by city officials and persons from local development agencies. Id. We held that "the sign committee is a public agency for purposes of the Open Meetings Act. " Id. We reasoned that:
[KRS 61.805(2)] does not require a formal act of establishment or creation by the municipality. Nor does it require that the entity be empowered to take action by or on behalf of the municipality. Clearly, the sign committee which is the focus of this appeal plays a critical role in the formation of public policy. It has reviewed the city's existing sign ordinance to determine the need for change, participated in the drafting of a new sign ordinance reflecting the input and suggestions of its membership, and recommended a draft ordinance to the city council. The fact that it was not created by executive action and that it serves a purely advisory function therefore does not alter our conclusion that it is a public agency.
Id. 98-OMD-096 held that a committee created by a local government for a specific public purpose, even containing members of the public, is a public agency.
Similarly, in 06-OMD-068, a city created a group to review a zoning ordinance governing recreational vehicles, "consider possible amendments . . ., and present to the City Counsel a proposed text amendment." Id. The group consisted of "'three city council members, the city zoning administrator and other residents'" who were "'appointed, selected or asked to group by city officials (city council members).'" Id. We held that "established, created, and controlled by the Independence City Council, the 'R/V Committee" is a public agency. " Again, we noted that "the inability of the Committee to take formal action does not alter our conclusion," as "the Committee 'play[ed] a role in the formation of public policy' ' so its meeting was "subject to the requirements of the Open Meetings Act 'notwithstanding the fact that it [did] not have authority to act.'" Id. 3 See also Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm., 732 S.W.2d 884 (Ky. 1987) (advisory presidential search committee was a public agency subject to the Open Meetings Act) .
Louisville Metro relies primarily on 09-OMD-056. In that decision, we considered the question of whether "three BGMU employees acting within the scope of their employment in reviewing the bids received in response to a Request for Proposals for Insurance Agency/Agent before gathering to combine their tabulations, which formed the basis of the General Manager's recommendation to the Board, constitute a 'public agency. '" Id. In that case, we held that "because the employees/staff members were not constituted as a committee that was 'established, created, and controlled' by a public agency . . ., they cannot properly be characterized as a 'public agency' for purposes of the Open Meetings Act. " Id. We reasoned that the public agency "'did not establish, create, appoint or control a Committee to act on [its] behalf with respect to the insurance agency/agency procurement, and did not delegate any of [its] functions or decision making authority' nor were any of the three employees 'asked to perform this review' by the Board." Id. "The staff members 'had no formal authorization, no formal membership, no formal agenda or minutes, [] took no formal action, made no formal recommendations, and did not meet as the result of any action of any public agency. '" Id.
09-OMD-056 is distinguishable from the present case in significant ways. First, the Heritage West committee was created for the specific purpose of scoring the proposals for Heritage West and reporting a recommendation to Louisville Metro. In 09-OMD-056, there was no specific committee created for a specific purpose; employees of the agency simply evaluated proposals as part of their regular job duties. Second, here the Heritage West committee did have a formal membership, made a formal recommendation, and met as a result of the actions of Louisville Metro. Third, and perhaps most importantly, the group in 09-OMD-056 consisted solely of employees of the public agency whose job duties included evaluating proposals. In this case, members of the public, and not just employees, were individually selected for a committee to do the work of a public agency. When members of the public are invited into a committee and tasked with doing the specific work of a public agency, it can no longer be fairly characterized as "the day-to-day administrative work of a public agency. " While agencies may always create opportunities for public input and discussion, Louisville Metro has gone beyond merely soliciting input; it has delegated a significant part of its duties to consider multi-million dollar projects to private individuals.
In rendering this decision, we are mindful of the need for confidentiality in the procurement process. However, the Open Meetings Act affords mechanisms to maintain such confidentiality. KRS 61.810(1)(g) allows for closed sessions for "discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal." 4 A public agency may continue to utilize ad hoc committees including members of the public, provided those committees abide by the Open Meetings Act. Alternatively, as in 09-OMD-056, a public agency could have employees who review and score proposals as part of their day-to-day administrative duties.
The Heritage West ad hoc committee, consisting of Louisville Metro employees and members of the public, and created by Louisville Metro for the purpose of evaluating a proposal and making a recommendation, is a public agency under KRS 61.805(2)(g), and was required to comply with the Open Meetings Act. Accordingly, Louisville Metro violated the Open Meetings Act in the committee's failure to abide by it.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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