24-OMD-191
September 9, 2024
In re: The College Heights Herald/Western Kentucky University
Board of Regents
Summary: The Western Kentucky University Board of Regents (“the
Board”) violated the Open Meetings Act (“the Act”) when it failed to
issue a written response to a complaint within three business days. The
Office cannot find that the Board violated KRS 61.810(2) by holding a
series of less-than-quorum meetings.
Open Meetings Decision
On July 31, 2024, counsel for the College Heights Herald (“the Appellant”)
submitted a complaint to the presiding officer of the Board, alleging it violated
KRS 61.810(2) when it held a series of “workshops” on June 3 and 4, 2024, in which
its members discussed their “upcoming votes on the University’s operating budget.”
Having received no response from the Board, the Appellant initiated this appeal on
August 23, 2024.
Upon receiving a complaint alleging a violation of the Act, a “public agency
shall determine within three (3) business days . . . 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.” KRS 61.846(1). On appeal, the Board does not deny that it failed to respond
to the Appellant’s complaint concerning the April 8, 2024, meeting.1 Thus, the Board
violated the Act.
1
The Board explains that it does not monitor its official email and that the complaint should have
been directed to WKU’s general counsel or outside counsel with whom the Appellant had discussed
this matter. But, under KRS 61.846(2), a complainant must “submit a written complaint to the
presiding officer of the public agency suspected of” violating the Act. Presumably, neither WKU’s
general counsel nor outside counsel is the presiding officer of the Board. Thus, under the Act, the
Appellant was not permitted to initiate its complaint by directing it to WKU’s general counsel or
outside counsel.Under KRS 61.810(1), “[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[.]” Furthermore,
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.
Thus, the Act not only prohibits a quorum from taking action in private, but also
“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 v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 474 (Ky.
1998) (emphasis added). The Supreme Court defined “public business” to include “the
discussion of the various alternatives to a given issue about which the board has the
option to take action.” Id.
Here, the Appellant alleges that a quorum of the Board’s members discussed
their “upcoming votes on the University’s operating budget” at the June 3 and 4
workshops and, thus, public business was discussed. For its part, the Board argues
public business was not discussed because “budgetary staff had already prepared [the
proposed budget] prior to” the June 3 and 4 meetings, and so the Board members
could not discuss “policy alternatives, potential changes to the budget proposal, or
debate the merits of the budget.” Rather, the Board maintains that members of the
budget staff “made themselves available so individual [Board members] could, if they
chose, educate themselves concerning the contents of the” proposed budget.
As support for its position, the Appellant quotes one Board member who
described the workshops as “just breaking down the budget and allow[ing] for
questions.” But this quote suggests, as argued by the Board, that it did not discuss
public business at its June 3 and 4 meetings; rather, its members had the opportunity
to “educate themselves” about the contents of the 79-page proposed budget. However,
in appeals under the Act, the Office cannot resolve factual disputes between the
parties. See, e.g., 23-OMD-103; 22-OMD-236; 19-OMD-187; 12-OMD-080. Here, theOffice cannot resolve the dispute between the parties as to whether the Board
members discussed their “upcoming votes on the University’s operating budget” at
the June 3 and 4 workshops.
Furthermore, a series of less-than-quorum meetings must be held “for the
purpose” of avoiding the obligations of the Act. KRS 61.810(2). In essence,
KRS 61.810(2) contains a mens rea requirement. See Elm Street/McCracken Pike
Preservation Alliance, Inc. v. Siegelman, No. 2005-CA-002079, 2007 WL 3228090, at
*5 (Ky. App. 2007). Moreover, KRS 61.810(2) also provides, “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.”
The Office has not hesitated to find a violation of the Act when there is evidence that
the members of a public agency intended to circumvent the Act. See, e.g., 18-OMD-
153; 94-OMD-106. However, when evidence of the members’ intent is lacking, the
Office has acknowledged its inability to conclusively determine that the public agency
violated KRS 61.810(2).
Here, the Appellant offers as evidence a Board member who stated, “After the
meeting, [he] greeted [two Board members], who [he] assumed, were there to occupy
a meeting slot immediately following us.” But this quote does not demonstrate an
intent to avoid the obligations of the Act. Rather, it shows only that one Board
member believed two other Board members would attend the next meeting. The
Appellant has not demonstrated that the June 3 and 4 meetings were held “for the
purpose” of avoiding the obligations of the Act or that those meeting were not held “to
educate the members on specific issues.” Accordingly, the Office cannot find the Board
conducted a series of less-than-quorum meetings in violation of the Act.
A party aggrieved by this decision may appeal it by initiating an 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#357
Distributed to:
Michael P. Abate
Beth Dillon
Andrea Anderson
Kyle Bumgarner