Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Summary : City of Crittenden did not violate the Open Meetings Act by requiring citizen to identify himself in order to address City Council meeting. Mayor's Facebook page, under facts alleged, did not constitute a quorum of the City Council and denying citizen access to the page did not violate the Act. City Council violated Act by failing to respond to Open Meetings complaint.
Open Meetings Decision
The question presented in this appeal is whether the City of Crittenden ("City Council") violated the Open Meetings Act in requesting a citizen to identify himself in order to address the City Council and in denying him access to the Mayor's Facebook page. For the reasons set forth below, we find that the City Council did not violate the Act in that meeting or in denying him access to the Facebook page, but its failure to respond to the citizen's open meetings complaint was a violation.
Norman Case ("Appellant") filed an Open Meetings complaint with the Mayor on May 24, 2019, claiming that he was not allowed to address the City Council at its January 8, 2019, meeting because he had not "signed in." He also complained that the Mayor had denied him access to the "official" Facebook page that the Mayor "had started." Not having received a response to his complaint, Appellant appealed to this office by letter dated June 17, 2019. Appellant included a copy of what appears to be Facebook Messenger 1personal messages between himself and the Mayor discussing Appellant's grievances against the Mayor.
Upon notification of the appeal, Alexander Edmondson, attorney, responded on behalf of the City Council on June 24, 2019. The City Council stated that prior to January 1, 2019, then Mayor-elect Camilla Patton and Appellant had discussed the need for attendees to sign in to meetings in order to be allowed to address the City Council at its meetings. Appellant "was advised that beginning in the new year all attendees of the meeting that wished to speak would need to identify themselves both for the record and to reflect in the minutes." At the January 8, 2019, meeting, Appellant "began talking in his seat and when confronted about signing in, refused and subsequently walked out." In regards to blocking Appellant from access to the Mayor's Facebook page, the City responded that "if [the Mayor] has reason to [believe] that inflammatory, vile, or [coarse] language is going to be used, then I believe that it is her duty to protect the City from negative discord."
Requirement to Sign In . KRS 61.840, states, in part: "No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting." However, neither KRS 61.840, nor any other provision of the Open Meetings Act, has been interpreted to vest the public with a right to participate, by means of public comment, in a meeting. In 95-OMD-99, the Attorney General made the following distinction:
While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency .
Id. , p. 2 (emphasis added). This office has encouraged (but declined to require) public agencies to adopt procedural rules that "include procedures permitting members of the public to address the public agency." 95-OMD-99, p. 2; 02-OMD-181. In the end, however, "it is up to each public agency to adopt procedural rules relative to conducting their meetings." Id. "While participation by public comment is strongly encouraged, it is not a right that can be enforced under the Open Meetings Act." 00-OMD-169. "Since the Open Meetings Act does not address the right of an individual to speak at public meetings, the Attorney General has consistently declined jurisdiction of issues relating to the deprivation of that nonstatutory right or requirements imposed by agencies to secure that nonstatutory right." 13-OMD-213 n.1. Accordingly, since the City Council was not obligated to take public comments at all, it cannot have violated the Open Meetings Act in requiring attendees who want to address the City Council meeting to identify themselves or to sign in.
Blocking Access to Facebook . Appellant states that he has been blocked from accessing the Mayor's Facebook page which "was being used to openly discuss city business ... ." The City defends blocking Appellant's access by implying it is due to "inflammatory, vile or [coarse] language" used by Appellant.
KRS 61.805(1) broadly defines "meeting" to include "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." However, 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)]." (Emphasis added.) Addressing the potential for subversion of the intent of the Act which exists with meetings involving less than a quorum of the members of a public agency, KRS 61.810(2) provides that 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."
In construing 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 meetings requirements of the Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Bd. , 983 S.W.2d 459, 474 (Ky. 1998). Violation of the Open Meetings Act, insofar as it relates to "secret meetings," is therefore 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. The Court in Yeoman further observed that 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 board has the option to take action." Id. Taking action, the Court noted, "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)." Id. See 00-OMD-171 (City Manager contacting city commissioners to confirm they did not want him to place an item on the agenda was not a discussion of "public business"); 13-OMD-086.
The City Council, according to its website, consists of six (6) members. 2A quorum is the "the minimum number of members (a majority of all the members, unless otherwise specified in the governing documents) who must be present for a deliberative assembly to legally transact business." Black's Law Dictionary (11th ed. 2019). The record on appeal does not establish that a single "meeting," of a quorum of the members of the City Council at which any public business was discussed or at which any action was taken, occurred on the Mayor's Facebook page, nor does it establish that a series of less than quorum meetings occurred; accordingly, KRS 61.810(2) is not implicated. See 10-OMD-210. In the absence of a quorum at a single meeting, or collectively at a series of meetings, there "was not a public meeting under the Open Meetings Act." 00-OMD-200, p. 6, quoting 93-OMD-63; 13-OMD-166 (because there was no quorum of the members of the board of education, there was no meeting and no violation was committed); 14-OMD-183 (a single discussion regarding the subject of raises for City personnel -- public business -- involving only two of the five members of the City Commission and less than a quorum did not violate the Act); 10-OMD-210. Under these facts, we cannot conclude that the City Council violated the Act by conducting a meeting, on Facebook, where it denied public access by denying Appellant the ability to observe a meeting of the City Council.
City Violated Act by Failing to Respond to Complaint . The City Council committed a violation of the Act when it failed to issue a written response of any kind to Appellant's May 24 complaint. On appeal, the City Council 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 City Council's inaction violated the Act.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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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