Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Prospect City Council violated provisions of the Open Meetings Act when, prior to its May 21, 2018, meeting, members engaged in a series of less-than-quorum meetings where the council members collectively constituted at least a quorum of the members of the public agency. For the reasons that follow, we find that the Board members' actions violated the Act.
In a complaint dated July 9, 2018, addressed to Mayor John Evans and the six council members, John Simpson alleged that at some time prior to the council's May 21, 2018, meeting, four members "prepared an agreed-upon set of allegations and complaints against Mayor Evans," "agreed on a demand for his resignation, " and "coordinated to set a time for a meeting with the mayor at which three of the [four] members appeared to present their allegations and complaints and to demand the mayor's resignation by the next day." He argued that these discussions, occurring in a "series of less than quorum meetings," constituted discussion of public business and final action by a quorum of the Prospect City Council in violation of the Open Meetings Act. As a remedy for the alleged violation, Mr. Simpson proposed that the four council members either resign or not stand for reelection.
On July 12, 2018, Mayor Evans responded in writing that Mr. Simpson's complaint "sets forth circumstances, if true, which could be construed to constitute a violation of the Act." The mayor made no admission or denial of the allegations, but stated that he planned "to have the City Attorney offer to provide guidance to all Council Members regarding the [Open Meetings] Act." In the present appeal, which this office received on July 23, 2018, Mr. Simpson requests "an unequivocal finding that the four members did indeed violate the Kentucky Open Meetings Act. " The City of Prospect has submitted no response to this appeal.
The official transcript of the council's May 21, 2018, meeting, submitted by Mr. Simpson, contains an admission by council member Stuart Miles that he spoke to fellow members Susan Nicholson, Luke Schmidt, and Jeff Stovall about reports he had heard from city employees about Mayor Evans' "mood," "decision making," and "making inappropriate comments and doing inappropriate things":
So I spoke to some other council members and shared my concerns. . . .
That information was shared with Council Member Stovall, with Council Member Schmidt, and Council Member Nicholson, and we compared notes, and we were all told consistently the same thing.
(Transcript, May 21, 2018, 64:24-65:1; 65:7-10.) This colloquy then followed:
COUNCIL MEMBER SCHMIDT: Okay. After getting all of this information each of us came to the same conclusion that these were some problem - problems that had to be looked into . They're - they're serious, they're concerning, and we simply - as Stuart said, we could not just turn a blind eye to this and not - and be responsible for what we're supposed to do.
COUNCIL MEMBER [FRANK] FULCHER: There were four of you, Luke?
COUNCIL MEMBER SCHMIDT: Three of us.
COUNCIL MEMBER FULCHER: He just said four. Didn't you, Jeff?
COUNCIL MEMBER MILES: No, I'm informed - I informed - and at no time, Frank, did we violate any open meetings law, we did not all four meet together, we did not all four get on the phone , and we did not do anything that was inappropriate to - to discuss this and share this just like we do when we discuss an ordinance or anything else that has to be voted on.
COUNCIL MEMBER FULCHER: But there were four of you? I just want to make it clear.
COUNCIL MEMBER MILES: There were four of us; yes .
. . . .
COUNCIL MEMBER SCHMIDT: All right. What we elected to do was to have a mayor - have a meeting with the Mayor, which we did this past Thursday, 1 and we shared all of these issues with him. And I'm going to - and from that we put together a resolution which these are precisely the things that we covered with the Mayor, and I'm going to read them into the record.
( Id. , 65:20-66:20; 67:2-9 (emphasis added).) The resolution, then read by council member Schmidt, concerned the various allegations against Mayor Evans and an agreement by the city council to conduct an investigation of the mayor's conduct. ( Id. , 67:10-74:1.)
Regarding the request for the mayor to resign, council member Miles stated that he told the mayor: "[I]f you have a health problem and that is an explanation for these allegations, then you want to consider stepping down." ( Id. , 121:12-14.) According to Mayor Evans, the statement from council member Schmidt was: "We want your resignation by sometime tomorrow." ( Id. , 121:19-20.) Council member Schmidt stated, at the June 2018 meeting, that he had told the mayor if there were a health problem, "perhaps he might consider resignation. He . . . indicated that that was not the case. And we told him that if that was the direction that he wanted to proceed, then we really felt that we had no other choice but to go ahead and start an investigation of this." (Transcript, June 18, 20, 25:19-20, 25:23-26:2.) Also in June, Mayor Evans characterized this same speech as: "And we want your resignation by 10:30 tomorrow morning." ( Id. , 44:18-19.) Under either version of the facts, however, it is evident that the four council members had agreed to confront the mayor to discuss his resignation, with the alternative plan of introducing a resolution to conduct an investigation.
The following discussion with Prospect resident Kathy Sadler occurred at the June 18, 2018, council meeting concerning the four members' possible violation of the Open Meetings Act:
MS. SADLER: So you conveniently avoid the - the quorum of four by using three, although all four of you knew what was - what you were going to do, is that correct?
COUNCIL MEMBER STOVALL: That's incorrect. That's incorrect.
COUNCIL MEMBER FULCHER: That's - that's not--
MS. SADLER: Okay. Tell me how that's--
COUNCIL MEMBER FULCHER: That's - that's correct. If you look at the minutes of the last meeting--
COUNCIL MEMBER STOVALL: Okay, Frank.
COUNCIL MEMBER FULCHER: --you will see that it's - that they violated the open meetings act by doing that and excluding --
COUNCIL MEMBER STOVALL: That's incorrect.
COUNCIL MEMBER FULCHER: --by excluding both [council member] Sandra [Leonard] and myself.
COUNCIL MEMBER STOVALL: That's incorrect, and that's a - that's - that's a very serious allegation. It's actually the second one you've made against me at this meeting.
COUNCIL MEMBER FULCHER: I didn't make it against you. I made it against all four.
COUNCIL MEMBER STOVALL: No, you did. I'm one of the four you're talking about.
COUNCIL MEMBER FULCHER: Yes.
COUNCIL MEMBER STOVALL: I'm not going to stand for that.
COUNCIL MEMBER FULCHER: You - if - it's in the minutes that you talked - all four of you talked before the three of you went into [ sic ] the mayor. You knew what was going on, Jeff.
COUNCIL MEMBER STOVALL: I don't know - I was not part of that meeting. And I'm not going to talk about anything about this, Frank. I'm not going to talk about it.
COUNCIL MEMBER FULCHER: Well, that's probably smart.
COUNCIL MEMBER STOVALL: Yeah, it is. And I think you should heed your own advice.
COUNCIL MEMBER MILES: First off, there's nothing that prohibits council members from talking individually amongst each other. The rule is - is that that council members, four or more, cannot meet together to discuss a--
MR. SPEAKER: 2 That's - that's not what the law says.
COUNCIL MEMBER FULCHER: That's not what the law says.
COUNCIL MEMBER MILES: Yes, it does.
COUNCIL MEMBER FULCHER: No. Grover? Grover, please?
CITY ATTORNEY POTTS: A quorum of a city council cannot conduct business except in an open meeting.
COUNCIL MEMBER FULCHER: Yes.
CITY ATTORNEY POTTS: And if two members of the city council talk to one another, and those other two members talk to two more members, and they do that as a subterfuge to keep from having an open meeting, then that's illegal.
COUNCIL MEMBER FULCHER: That's illegal; correct.
MS. SADLER: Okay. Thank you for your answer. Thank you, Jeff, for answering without answering. Appreciate it.
( Id. , 112:1-14:21 (emphasis added).) This dialogue reveals a lack of understanding on the part of some council members as to the provisions of KRS 61.810(2).
The Open Meetings Act "prohibits . . . meeting in number less than a quorum for the express purpose of avoiding the open meeting requirement of the Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Bd., 983 S.W.2d 459, 474 (Ky. 1998). We find that, in this case, the participating council members violated KRS 61.810(2) by engaging in a series of less-than-quorum meetings where the members attending those meetings collectively constituted a quorum.
The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), states that:
All 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. . . .
Addressing the potential for subversion of the intent of the Act in meetings involving less than a quorum of the members of a public agency, KRS 61.810(2) provides:
Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. 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.
KRS 61.810(2) "represents an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act. " 94-OMD-106; see also 02-OMD-153.
In applying these provisions, the Kentucky Supreme Court has declared that "[t]he 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 requirement of the Act." Yeoman, supra, at 474. Violation of the Open Meetings Act, insofar as it relates to "secret meetings," can thus be predicated on two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken, or (2) a series of less-than-quorum meetings attended by members of the agency collectively constituting a quorum and held for the purpose of circumventing the requirements of the Act.
While KRS 61.805(1) broadly defines the term "meeting" 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," the Court in Yeoman observed:
For a meeting to take place within the meaning of the act, public 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 [public agency] 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).
Yeoman, supra, at 474 (emphasis added).
Here, the record shows no dispute that a quorum of members discussed the proposed actions prior to the three members' meeting with the mayor. Accordingly, a series of less-than-quorum gatherings 3 occurred where the members attending one or more of the gatherings collectively constituted a quorum. The first element of a violation of KRS 61.810(2) therefore exists.
As to the second element, we find that public business was discussed and action was taken through the series of less-than-quorum meetings. Conversations relating to a request (or suggestion) for a mayor's resignation, or an investigation to be conducted by the city council, clearly fall within the scope of the definition of "public business. " Indeed, council member Schmidt's statement that "we could not just turn a blind eye to this and not - and be responsible for what we're supposed to do" indicates that the participating members emphatically believed their discussions pertained to their public duties as members of the city council. (Transcript, May 21, 2018, 65:25-66:2.) Thus, these were discussions of matters related to an issue upon which the council had the option to act. Furthermore, the four members' agreement to confront the mayor with the choice of resignation or investigation constituted a "collective decision" and therefore "action taken" under the definition in KRS 61.805(3). Accordingly, the exclusion of some council members and the general public from those discussions establishes the second element of a violation of KRS 61.810(2).
KRS 61.810(2) also contains a third element. That element relates to intent and requires a showing that the gatherings "are held for the purpose of avoiding the requirements of [the Open Meetings Act] ." Where proof of intent to circumvent the requirements of the Act has been adduced, this office has found the participants in violation of KRS 61.810(2). 94-OMD-106. In this case, the record shows that the four council members holding the discussions were conscious that they collectively constituted a quorum, so that a meeting of all four would violate the Open Meetings Act, and that the four sent a delegation of three to meet with Mayor Evans. Moreover, the discussions at the June 18, 2018, meeting reveal that the members were unaware that a series of less-than-quorum meetings by a quorum could also violate the Act. Under the totality of the circumstances, we find the record indicates that the less-than-quorum meetings were "held for the purpose of avoiding the requirements of" KRS 61.810(1), and therefore in violation of KRS 61.810(2).
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.
Footnotes
Footnotes
1 The Thursday before the meeting was May 17, 2018.
2 Mr. Speaker" is the court reporter's designation for an unidentified male voice.
3 A "gathering" can be by telephone as well as in person. 05-OMD-026; 02-OMD-153.