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 Gallatin County Ethics Board ("Board") violated the Open Meetings Act ("Act"). We find that the Board violated the Act by failing to provide a regular schedule of meetings and failing to make that schedule available to the public as required by KRS 61.820(2). We also find that, due to the absence of a regular schedule of meetings, the August 26, 2019 gathering of a quorum of Board members was a special meeting held in violation of the scheduling and notice requirements of KRS 61.823(2), (3) and (4).
On September 17, 2019, Mark Wilson ("Appellant") submitted a complaint to Board Chairman George Zubaty in which he alleged the Board violated KRS 61.820 regarding a schedule of regular meetings, and KRS 61.823(2), (3) and (4) regarding special or emergency meetings. Appellant alleged that the Board was in violation of KRS 61.820 because it had no schedule of regular meetings for 2019. Appellant argued the Board's August 26, 2019 meeting was therefore a special meeting, and that the special meeting violated KRS 61.823 because it was "called either by the [Gallatin County] Judge Executive or by the [Gallatin County] County Attorney." Appellant also alleged that the Board violated KRS 61.823 by failing to give the public proper notice of the special meeting.
On September 20, 2019, Gallatin County Attorney John G. Wright responded to the complaint on behalf of the Board. Mr. Wright stated, "I agree that the open meetings statutes apply to the [Board]." However, Mr. Wright disputed that the August 26, 2019 gathering was a meeting at which the board members discussed or took action on any public business. He argued that the Board is an "independent board and as such they would have to get organized. This group has never met. Please note that their first business was to select a chairman. That is the only action the board took." Mr. Wright stated that the Board discussed a public complaint against Appellant, but "[n]o action was taken by the Board and they directed me to bring the matter to the attention of the Commonwealth Attorney and to notify you of the complaint."
On September 24, 2019, Appellant appealed the disposition of his complaint to the Attorney General, arguing that the Board violated provisions of KRS 61.820 and KRS 61.823. As evidence, Appellant attached a list of the Board members, and attached a September 10, 2019 letter from the Gallatin County Fiscal Court stating that the Board "has only had this one meeting this year and will only meet per request by the Judge Executive or County Attorney." The letter also stated "[t]here were no advertisements made prior to the meeting, it was not a special meeting." Appellant also attached minutes for an August 26, 2019 Board meeting held at the Gallatin County Extension Office. The minutes show that a quorum of members was present, and the members voted to elect a chairman. The minutes also show that the Board voted unanimously to refer a public complaint to the Commonwealth's Attorney, "and let that office decide whether the matter should be referred to the Attorney General's Office[.]"
On October 2, 2019, the Board responded to the appeal, arguing that it took no action on Board business. The Board argued that it took no action on the complaint because "the Commonwealth Attorney has chosen not to pursue any action in the form of criminal charges[.]" Regarding all other alleged violations of the Act, the Board referred this office to Mr. Wright's September 20 letter as the statement of its position.
The Board Violated KRS 61.820(2) by Failing to Provide a Schedule of Meetings and Make that Schedule Available to the Public . The Board violated the Act by failing to adhere to the requirements of KRS 61.820 regarding a schedule of regular meetings. The Board stated in its response to Appellant's complaint that it is subject to the requirements of the Act, but also that it is "independent." Nevertheless, we find that the Board is a "public agency" because it consists of members appointed by the Gallatin County Judge Executive. Pursuant to KRS 61.805(2)(f), 1any entity is a "public agency" when the majority of its governing body is appointed by a "public agency." Accordingly, boards and committees consisting of members appointed by the Judge-Executive meet the KRS 61.805(2)(f) definition of a "public agency." See 95-OMD-124 (holding that an emergency medical services committee appointed by the Boyle County Judge Executive is a public agency per KRS 61.805(2)(f)). As such, the Board is a "public agency" required to adhere to the requirements of the Act.
Given that the Board is a "public agency," KRS 61.820(1) provides that, "[a]ll meetings of all public agencies of this state. . .shall be held at specified times and places which are convenient to the public." In furtherance of the requirements of subsection (1), KRS 61.820(2) provides that, "all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public." The evidence in the record establishes that the Board failed to provide a schedule of regular meetings, and made no such schedule available to the public. As such, the Board violated KRS 61.820(2).
The August 26, 2019 Gathering of Board Members was a Meeting . Appellant argues that the August 26, 2019 gathering was a meeting, but the Board disputes his claim, arguing "it is still in the process of formally organizing." However, evidence exists in the record that the August 26, 2019 gathering at the Gallatin County Extension Office was a meeting requiring compliance with the provisions of the Act.
The record shows that a quorum of Board members gathered for the purpose of electing a chairman and referring a public complaint to the Commonwealth's Attorney for legal review. Evidence exists that those actions carried by unanimous vote. The term "meeting" is broadly defined at KRS 61.805(1) 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[.]" In
Yeoman v. Comm. of Ky., Health Policy Bd. , 983 S.W.2d 459 (Ky. 1998), the Kentucky Supreme Court 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 governing body." KRS 61.805(3).
Yeoman , at 474 (emphasis added).
The Board election and the referral of the complaint were public business under Yeoman . The election of Board officers is public business because the election is one of the various alternatives to a given issue about which the Board has the option to take action. The complaint is a matter of public business because a member of the public filed the complaint with the Board, pursuant to its authority, and the Board had the option to take action on the complaint. The Board took action by referring the complaint for legal review, "a collective decision, a commitment or promise to make a positive or negative decision[.]" See Yeoman , 983 S.W.2d at 474 (quoting KRS 61.805(3)). As such, sufficient evidence exists in the record that the Board election and the complaint are public business.
The discussion of the items of public business made the August 26, 2019 gathering a meeting. The Act does not support the Board's argument that there was no meeting because it had not yet formally organized. There is no requirement that a quorum of members gather formally to meet the definition of a meeting. All gatherings of a public agency, whether formally convened or causally gathered, where a quorum is present and any public business is discussed or action is taken, are subject to the provisions of the Act. 01-OMD-30, p. 4, citing OAG 78-411. Accordingly, the August 26, 2019 gathering was a public meeting.
The Board's August 26, 2019 Meeting was a Special Meeting Held in Violation of the Requirements of KRS 61.823(2), (3) and (4) . Having found that the Board failed to provide for a schedule of regular meetings and that the August 26, 2019 gathering was a meeting, we find the Board failed to adhere to the scheduling and notice requirements of KRS 61.823(2), (3) and (4) for special meetings. On many occasions, the Attorney General has recognized that "[t]here are only two kinds of meetings -- regular meetings and special meetings." 94-OMD-50, p. 4. This office has observed that "[i]f the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed." 92-OMD-1840, p. 3. 2Absent a schedule of regular meetings properly provided for under KRS 61.820, the August 26, 2019 meeting was a special meeting.
In his complaint and appeal, Appellant argued the Board failed to meet the special meeting scheduling and notice requirements of KRS 61.823(2), (3), and (4), pursuant to which:
(2) The presiding officer or a majority of the members of the public agency may call a special meeting.
(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda . Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
(4)(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting . . . .
(b) A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail. The written request shall include the electronic mail address or addresses of the agency member or media organization.
(Emphasis added.) The record supports Appellant's argument. The Fiscal Court letter is evidence that the Gallatin County Attorney or Judge Executive called the special meeting, and the Board does not dispute that evidence. As such, the special meeting violated the scheduling requirement of KRS 61.823(2). The letter also shows that the Board did not issue timely written notices of the meeting as required by KRS 61.823(3) and (4). The Board does not dispute the evidence. As such, the Board failed to meet the notice requirements of KRS 61.823(3) and (4), and the Board failed to meet the scheduling and notice requirements in advance of the August 26, 2019 special meeting.
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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