Request By:
Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Bardstown City Tree Board ("Board") violated the Open Meetings Act when it held an impromptu conference call meeting of Board members and also in its disposition of the written complaint regarding that matter. We find that the Board violated KRS 61.810(1) and KRS 61.810(2) by conducting a meeting of a quorum of members by a series of private telephone calls. The Board procedurally violated KRS 61.846(1) when it failed to issue a written response within three days after receipt of the complaint. The Board did not violate KRS 61.835 because an email message reporting the meeting met the minimal requirements for minutes.
Background
On September 6, 2018, Brenda Bogert (Appellant) submitted an open meetings complaint to the Board. Appellant sought a remedy to actions taken by the Board after what she described as "telephone conversations . . . held on October 19, 2017, between three members of the Tree Board, which constituted a quorum. " Appellant noted that the conference call meeting was reported in an email message exchanged between City Groundskeeper Phillip Grubbs and an individual identified in the appeal only as "Jennifer Eggemeier." Appellant argued that, "[s]ince the meeting was held by telephone, it was not an open meeting and no minutes exist beyond the email [.]"
On September 21, 2018, Appellant submitted an appeal to this office. Appellant stated that, "I sent a letter of complaint to the Chairman of the Tree Board on September 6, 2018, and have received no reply." She stated, "I filed open records requests regarding actions that had been taken by the [Board]. . .I learned that the Board had made one decision at an open meeting. . . and had made another decision through telephone polling[.]" Appellant also stated that, "I was told by the Bardstown City Clerk that an email message. . .was the only record of the Board's decision." Appellant argued that, "[i]n my opinion, a quorum of the Board members making a decision through telephone calls outside of a public meeting is a violation of KRS 61.810(2)."
Appellant attached a copy of the email message from the City Groundskeeper to "Jennifer Eggemeier" to the complaint. The message states,
"On October 19th at 8:50 am I discussed the proposal of removing One [ sic ] sugar maple at 202 south third street, which was proposed by the homeowner, and discussed on site with councilman Joe Buckman who is currently remodeling the propert [ sic ]. The sugar maple has a lean towards the street, and is causing the sidewalk to be raised. As a result of the sidewalk grade, water is now directed towards the home. Phone calls were made to Tree board members, Dixie Hibbs and Nick Kipper, who both agreed to allow removal of the sugar maple. The homeowner will be replacing the sidewalk to correct drainage issue, and will be planting two trees in the 3rd street right of way."
Appellant also attached a copy of the official minutes of the July 19, 2017 Board meeting. The minutes show that the Board consisted of six members, and the City Groundskeeper, Dixie Hibbs, and Nick Kipper are members.
On September 28, 2018, attorney for the City of Bardstown Timothy C. Butler responded to the appeal on behalf of the Board. Mr. Butler argued that there was no violation of the Open Meetings Act because the Board, "does not have the authority to approve or deny the removal of any tree. In the action taken, no meeting of any board was required." Mr. Butler attached a copy of the Bardstown city ordinances to support his argument. He noted that the Board authority arose from Section 99.14. 1 Mr. Butler argued that the "'City Forrester' has the ability to approve the removal of a street tree (Section 99.24)." Mr. Butler did not address Appellant's allegations that the Board did not respond to her initial complaint, and that the Board did not report minutes for the October 19, 2017 call.
Analysis
The Board committed a substantive violation of the Open Meetings Act by conducting a meeting of a quorum of members by telephone calls. The October 19, 2017 telephone calls constitute a meeting of a quorum of members of the Board. The application of the requirements of the Act "is conditioned upon proof that a meeting occurred, that the meeting was attended by a quorum of the members of the public agency, and that public business was discussed or action was taken." 00-OMD-200, p. 6. KRS 61.805(1) broadly defines "meeting" to include "all gatherings of every kind, including teleconferences, 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." This broad applies to the series of telephone calls at issue, which were placed by a member of the Board, and a quorum of members responded and participated in the calls. These facts are sufficient evidence that there was a "meeting" as contemplated by the Act.
A public agency meeting in which all members participate entirely by private telephone calls, as in this case, violates KRS 61.810(1). In construing KRS 61.810, the Kentucky Supreme Court 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 meetings requirements of the Act."
Yeoman v. Commonwealth of Ky. Health Policy Bd., 983 S.W.2d 459, 474 (Ky. 1998). 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; and (2) a series of less than quorum meetings attended by members of the agency collectively constituting a quorum which are held for the purpose of circumventing the requirements of the Act. 18-ORD-153.
KRS 61.810(1) expressly 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, except for [certain exceptions codified at (1)(a)-(n)]." The Open Meetings Act is "designed to require governmental agencies to conduct the public's business in such a way that the deliberations and decisions are accomplished in an atmosphere wherein the public and media may be present."
Jefferson Cty. Bd. of Educ. v. Courier-Journal and Louisville Times Co., 551 S.W.2d 25, 27 (Ky. App. 1977). Kentucky's Supreme Court has determined that actions taken by public agencies in the course of telephonic meetings are void.
Fiscal Court of Jefferson Cty. v. Courier-Journal and Louisville Times Co., 554 S.W.2d 72 (Ky. 1977); see also 11-OMD-018 ("No authority exists in the Open Meetings Act . . . for telephonic meetings."). Accordingly, the meeting violated KRS 61.810(1) by excluding the public and media.
The October 19, 2017 telephone meeting also violated KRS 61.810(2). 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.
We have found that 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. " 18-OMD-153; 94-OMD-106. Therefore, as a series of less than quorum telephone calls held for the purpose of avoiding the requirements of KRS 61.810(1), the October 19, 2017 meeting also violated KRS 61.810(2).
To sustain a finding of a violation of KRS 61.810(1) and KRS 61.810(2) , the record before us must show that the meeting contained a discussion of "public business. " See 18-OMD-153; 17-OMD-208; 08-OMD-234; 00-OMD-171. The City Attorney argues that there was no violation of the Act because the tree removal discussed over the conference call was not public business. He attached a copy of the city ordinances to the Board's response to the appeal to support the position. We cannot offer an opinion on whether the city ordinances contemplate tree removal as "public business" under the Board's jurisdiction. The Attorney General is not empowered to "adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]" in the context of an Open Meetings appeal. 02-OMD-22, p. 4; 10-OMD-120. Rather, this office has a limited role in adjudicating disputes arising under the Open Meetings Act, which is narrowly defined at KRS 61.846(2), pursuant to which the Attorney General "shall review the complaint and denial and issue . . . a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850 ."
However, the Board minutes provided by Appellant provide sufficient evidence to support a finding of a violation of the Act. The minutes list "Tree Removal" as an agenda item for the meeting. The minutes also show that the Board voted on tree removal matters five times and issued decisions authorizing those removals. Public business is the discussion of "various alternative to a give issue about which the board has the option to take action." Yeoman, 983 S.W.2d at 474. Applying the definition in Yeoman , the minutes support Appellant's position that tree removal is "public business, " and the Board members discussed "various alternatives to a given issue about which the board has the option to take action." There is sufficient evidence that the Board members participating in the conference call intended to discuss public business. Accordingly, we find that there was a discussion of "public business" during the meeting establishing that necessary element of a violation of KRS 61.810(1) and KRS 61.810(2).
The Board committed a procedural violation of the Act when it failed to issue a written response of any kind to Appellant's September 6, 2018 complaint. On appeal, the Board did not provide any explanation for its failure to issue a written response. These omissions violated the requirements of KRS 61.846(1). In relevant part, KRS 61.846(1), provides:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision . . . The response shall be issued by the presiding officer, or under his authority, and shall constitute a final agency action.
This office has consistently recognized that KRS 61.846(1) "does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period." 03-OMD-116, p. 2. As with KRS 61.880(1), the parallel provision of the Open Records Act, "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029. This holding applies with equal force to parallel requirements of the Open Meetings Act. See 13-OMD-158. Simply put, KRS 61.846(1) requires a public agency to issue a written response within three business days of receiving a complaint, and the Board's inaction violated the Act. The Board's failure to respond to Appellant's complaint as required by KRS 61.846(1) was a procedural violation.
We find that the Board did not violate KRS 61.835. 2 The email communication issued by the City Groundskeeper met the minimal requirements pertaining to the keeping of minutes. The Groundskeeper made an accurate record of the votes and actions taken during the conference call. He also "promptly recorded" the minutes, within reason, by sending the email message approximately one month after the date of conference call. Sufficient evidence exists to show the email message is open to public inspection. Appellant was able to obtain a copy of the message pursuant to an Open Records' Request and include a copy with her evidentiary exhibits. Accordingly, the Board did not violate KRS 61.835.
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 Bardstown City Ordinance Section 99.14 states, "Duties and Responsibilities. It shall be the responsibility of the Board to study, investigate, counsel, develop and/or update annually, and administer a written plan for the care, preservation, pruning, planting, replanting, removal, or disposition of trees and shrubs in parks, along streets, and in other public areas. The plan will be presented annually to the City Council and, upon their acceptance and approval, shall constitute the official comprehensive tree plan for the city. (Ord. 570, passed 1-10-95)"
2 KRS 61.835 states, "[t]he minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body."