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 Technology Advisory Council ("TAC") violated provisions of the Open Meetings Act by holding non-public meetings, without minutes or public notice, at which public business was discussed. For the reasons that follow, we find that TAC violated the Act.
Pursuant to KRS 42.730(2), the executive director of the Commonwealth Office of Technology ("COT") serves as the chief information officer for all executive branch agencies. KRS 42.728(1) provides:
To accomplish the work of the Commonwealth Office of Technology, all organizational units and administrative bodies, as defined in KRS 12.010, and all members of the state postsecondary education system, as defined in KRS 164.001, shall furnish the Commonwealth Office of Technology necessary assistance, resources, information, records, and advice as requested.
The chief information officer formed TAC by "establish[ing] a monthly meeting for all technology leaders in the Executive branch calling that group the TAC." 1 TAC began meeting in January 2013. 2 TAC asserts that it serves the advisory function described in KRS 42.728(1). Its website describes it as follows:
The Technology Advisory Council (TAC) functions as the primary governance body for information technology in the executive branch of state government. The TAC advises the State CIO on implementation and management of strategic IT initiatives that maximize business value in support of service delivery while protecting the data and network resources that allow state government to operate.
Members of the council represent business, IT, or financial management leadership from each cabinet in the executive branch.
The TAC is chaired by the Chief Information Officer, Commonwealth Office of Technology. 3
(Emphasis added.) TAC's membership is composed "primarily of the IT heads from all the cabinets and a few others," 4 all of whom TAC described on April 26, 2019, as "information technology personnel for their respective agencies."
In a complaint dated April 5, 2019, addressed to COT's Chief Information Officer, Charles Grindle, The Courier-Journal's reporter Alfred Miller alleged that TAC, as a public agency, had failed "to admit the public to the open portion of its meetings, establish a schedule of regular meetings, notify the public of its special meetings and record minutes of its meetings," in violation of KRS 61.810(1), 61.820, 61.823, and KRS 61.835. As a remedy for the alleged violation, Mr. Miller proposed that TAC release records of its past meetings, acknowledge its status as a public agency, and agree to comply with the Open Meetings Act in the future.
Having received no response to the complaint, The Courier-Journal initiated this appeal on April 26, 2019. On that same date, TAC responded to Mr. Miller's complaint via a letter from Chris Lewis, General Counsel, Finance and Administration Cabinet. The record on appeal shows that Mr. Miller's complaint was postmarked April 11, 2019, but not delivered until April 23, 2019. KRS 61.846(1) allows a public agency three days from receipt of an open meetings complaint, excluding weekends and legal holidays, to make a written disposition of the complaint. Therefore, TAC's response was timely.
In the April 26, 2019, response, Mr. Lewis asserted that TAC meetings merely consisted of "routine" assistance provided to Mr. Grindle, "similar to discussions with any other day-to-day consultations he has with staff under his leadership. " To subject this type of "administrative work" to the requirements of the Open Meetings Act, he argued, "would paralyze the operation of state government by prohibiting any consultations, discussions, or information sharing between public employees without a formal public meeting." Despite this dire prediction, however, TAC agreed to conduct its future meetings "in a manner consistent with the formal requirements of the Kentucky Open Meetings Act, [but] without waiving any argument that doing so goes beyond what is required by the Act." This promise of future compliance included adopting a regular meeting schedule, admitting the public to the open portions of meetings, giving notice of special meetings, and keeping minutes.
In its response to the appeal, TAC argues that its adoption of the Act's procedures going forward renders the controversy moot, and that the appeal should therefore be dismissed. On the contrary, merely providing a remedy without acknowledging a violation does not moot an open meetings appeal. The Attorney General's role under KRS 61.846(2) is to determine "whether the agency violated the provisions of KRS 61.805 to 61.850." Thus, where an agency granted some of the requested remedies but denied any violation of the Act, we have found that "the primary (albeit substantive) issue presented is not moot as the [agency] has not conceded that any violation was committed." 11-OMD-162 n.5. It is only "[w]here the agency concedes error" that "the issue upon which that portion of the appeal is based becomes academic or moot. " 98-OMD-74; see also 98-OMD-142 n.1 (citing 98-OMD-119). Thus, we must decide the disputed issue of whether a violation occurred.
The Courier-Journal argues that TAC is a "public agency" as defined in the KRS 61.805(2)(f), (g), and (h). The most obviously applicable of these subsections is KRS 61.805(2)(f), which provides:
Any entity when the majority of its governing body is appointed by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a "public agency, " a state or local officer, or any combination thereof;
Since each of the participating state agencies 5 delegates its representative(s) to serve on TAC, its entire membership is "appointed by a 'public agency' [,] a member or employee of a 'public agency, ' a state or local officer, or any combination thereof."
TAC attempts to characterize itself as "an internal staff meeting," 6 similar to the three employees of Bowling Green Municipal Utilities in 09-OMD-056, who reviewed bids from insurance agencies in response to a Request for Proposals "before gathering to combine their tabulations" and submit them to the general manager, who then made a recommendation to the governing board. We found there that the three staff members were not appointed by the board for this purpose and did not engage in the formation of public policy, but were merely performing internal "administrative functions ? without power or authority to govern." 09-OMD-056 (quoting
Tribune Publishing Co. v. Curators of University of Missouri, 661 S.W.2d 575, 584 (Mo. Ct. App. 1983)). In the present appeal, however, the members of TAC are selected as representatives from several different agencies and do not merely perform internal administrative functions.
In 11-OMD-060, we held that KRS 61.805(2)(f) applied to a "steering committee" or "exploratory group" consisting of six members from three cities, appointed by their respective mayors, "to meet and explore the feasibility of inter-connecting and, possibly, consolidating the water and sewer utilities of each of the three cities." The fact that the group served only "in an advisory role" and had "no authority to take action" did not alter our conclusion, since the members "discussed" "public business" within the meaning of KRS 61.810(1), 7 playing a "critical role in the formation of public policy. " 11-OMD-060.
Here, as in 11-OMD-060, TAC consists of members appointed by public agencies to discuss public business. It forms public policy by functioning as "the primary governance body for information technology in the executive branch of state government. " Accordingly, we conclude that TAC falls within the definition of "public agency" in KRS 61.805(2)(f). Since that subsection is dispositive of the issue on appeal, we need not address the applicability of KRS 61.805(2)(g) or (h).
TAC has not denied The Courier-Journal's allegations that its past meetings 8 of a quorum failed to comply with the Open Meetings Act's requirements of being open to the public except for lawful closed sessions (KRS 61.810(1)), having a public regular schedule (KRS 61.820(2)), recording proper minutes (KRS 61.835), and giving public notice of special meetings (KRS 61.823). Therefore, we find that TAC conducted all such meetings in violation 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 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 E-mail from Pamela Trautner, Finance Secretary's Office, to Alfred Miller, March 8, 2019 (submitted as exhibit by TAC).
2 https://technology.ky.gov/about/Pages/governance.aspx (last visited May 10, 2019).
3 https://technology.ky.gov/about/Pages/TAC.aspx (last visited May 8, 2019). As of March 6, 2019, TAC consisted of 15 members, all identified by name, including two representatives of COT and one representative from each of the following: Economic Development Cabinet; Education and Workforce Development Cabinet; Energy and Environment Cabinet; Finance and Administration Cabinet; Governor's Office; Health and Family Services Cabinet; Justice and Public Safety Cabinet; Labor Cabinet; Office of State Budget Director; Personnel Cabinet; Public Protection Cabinet; Tourism, Arts and Heritage Cabinet; Transportation Cabinet. Id.
4 E-mail from Pamela Trautner, Finance Secretary's Office, to Alfred Miller, Feb. 21, 2019 (submitted as exhibit by both parties).
5 Every state or local government agency ? created by or pursuant to state or local statute" is a public agency under KRS 61.805(2)(d).
6 Letter from Pamela Trautner, Finance Secretary's Office, to Alfred Miller, Feb. 28, 2019 (submitted as exhibit by both parties).
7 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...."
8 The term "meeting" is broadly defined in KRS 61.805(1) as "all gatherings of every kind, including video 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."