TO BE PUBLISHED 

93-OMD-63

May 28, 1993

In Re: Chad Carlton/Hon. Joe Clarke

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by Chad Carlton of the Lexington Herald-Leader concerning action taken by the Speaker of the Kentucky House of Representatives. Mr. Carlton complains of being excluded from a meeting of House members who had gathered for the purpose of obtaining information about Governor Jones' health care reform proposal.

On May 12, 1993, a memorandum was sent to members of the House Majority Caucus concerning an "informational session for legislators on health care reform legislation." It was stated that an informational session for legislators on the specifics of health care reform would be conducted on May 13, 1993, beginning thirty minutes after adjournment.

In a letter to Mr. Joe Clarke, dated May 13, 1993, Mr. Carlton stated he was protesting the meeting of the House of Representatives held on May 13, 1993, discussing the Governor's health care reform proposal, from which the public and members of the media were excluded. Mr. Carlton's letter said in part:

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During our earlier conversation you refused to cite any statute to support your decision. Your stated reason for closing the meeting was 'because I want the members to feel free to ask any dumb questions they've got' without the public present.

In a letter dated May 17, 1993, Mr. Clarke responded to Mr. Carlton and advised him as follows:

Without addressing questions regarding the applicability of the Kentucky Open Meetings Act (KRS 61.805-61.850) to the full Kentucky House of Representatives as a constitutional entity, and the applicability of such statutes to the majority and minority caucuses of the House of Representatives, please be advised that to the best of my knowledge no quorum of the House of Representatives, or of a public agency within the meaning of KRS 61.810, was present at any time during the course of the above-referenced caucus meeting.

Mr. Carlton submitted a letter of appeal to this office, dated May 13, 1993 (the same date as his letter to Mr. Clarke). He again stated that Mr. Clarke's action in refusing to admit the public to the meeting on May 13, 1993, relative to obtaining information on the Governor's health care reform proposal was a violation of the Open Meetings Law.

Associated Press Correspondent Mark R. Chellgren has also filed an appeal with the Attorney General relative to Mr. Clarke's refusal to admit the public and the media to the meeting on May 13, 1993, in regard to information pertaining to the Governor's health care reform proposal. Mr. Chellgren's letter of May 17, 1993, states in part as follows:

Whether a majority of the membership of the House attended the meeting is not the point. It is well established in Kentucky Open Meetings Law that meetings of less than a quorum when the entire body was called to the meeting, especially to avoid a quorum is a dodge.

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Furthermore, I believe Speaker Clarke's letter leaves out the fact that this was not merely a meeting of the Majority Caucus. In fact, every member of the House was invited and encouraged to attend, regardless of party affiliation.

If Mr. Chellgren submitted a written complaint to Mr. Clarke, as required by KRS 61.846(1), he has not furnished this office with a copy of that letter, as required by KRS 61.846(2). Mr. Chellgren received the same response from Mr. Clarke (a letter dated May 17, 1993) as did Mr. Carlton.

While apparently much has been spoken and written about this matter, generally, very little pertinent information has been furnished to this office in regard to the appeal. The appealing media persons have provided few specific facts and Mr. Clarke's response of May 17, 1993, does not meet the requirements set forth in KRS 61.846(1) pertaining to the written response of the public agency.

Although the Open Meetings Act (KRS 61.805 to KRS 61.850) does not specifically so state, we conclude at the outset that the Open Meetings Act, generally, applies to the House of Representatives. Obviously such a conclusion would change if and when a court of law finds to the contrary.

KRS 61.800 provides that the basic policy of the Open Meetings Act is that the formation of public policy is public business and shall not be conducted in secret. The exceptions to open and public meetings shall be strictly construed.

KRS 61.805(2)(b) merely states that "public agency" in part means "Every state or local legislative board, commission, and committee." Among the exceptions to open and public meetings is KRS 61.810(1)(i) stating that "Committees of the General Assembly other than standing committees" can be excepted from the open meetings provisions. If the House of Representatives was, generally, excluded from the coverage of the Open Meetings Act, then the law would not make a distinction as to what kinds of House Committees are excluded from the provisions of the Act.

Since the Open Meetings Act, generally, applies to the House of Representatives then the next question is whether the

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meeting on May 13, 1993, discussing the Governor's health care reform proposal, was or should have been an open and public meeting.

Mr. Clarke's letter of May 17, 1993 refers to the meeting as a "caucus meeting." Webster's Third New International Dictionary (1963) defines "caucus" in part as follows, at page 355:

A conference of party or organization leaders (as in legislators) to decide on policies, plans, appointees and candidates; a local or regional meeting of party members to choose candidates or delegates.

Perhaps the meeting was originally intended to be some kind of caucus meeting but at least one of the media persons maintains that every member of the House was invited to attend the meeting regardless of party affiliation. This office does not know who specifically attended the meeting but if invitations were extended to all members, regardless of party affiliation, then, by definition, the meeting was not a caucus meeting.

KRS 61.805(1) defines "meeting" as follows:

'Meeting' means all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and information or casual gatherings held in anticipation of or in conjunction with a regular or special meetings.

Also, in connection with what constitutes a meeting, KRS 61.810(1) provides in part:

All meetings of a quorum of the members of any public agency at which 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 the following: [.]

Many of the elements of a "meeting" are present in the situation under discussion. The memorandum of May 12, 1993,

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indicated that there would be a gathering constituting an informational session. Public business was involved as the matter to be discussed was the health care reform proposal, the matter then pending before the General Assembly.

However, as indicated by KRS 61.810(1), one of the elements necessary to constitute a public meeting is the presence of a quorum. Mr. Clarke has specifically stated that a quorum was not present and nobody has contested or refuted that statement. Thus, if a quorum was not present the meeting in question was not a public meeting under the Open Meetings Act.

As alluded to by one of the media persons there is a provision in the Open Meetings Act where less than a quorum of the members can constitute a meeting. Note that KRS 61.810(2) begins with the phrase "Any series of less than quorum meetings." Thus to utilize this exception it must be shown that the public agency is meeting with less than a quorum over a series of meetings to avoid the application of the provisions relating to open and public meetings. In the situation relative to this appeal there has only been one meeting. KRS 61.810(2) is not applicable here.

Either party to this appeal may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

sjj/701

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Copies of this decision

have been mailed to:

Chad Carlton

612A Shelby Street

Frankfort, Kentucky 40601

Hon. Joe Clarke

Speaker

House of Representatives

State Capitol

Frankfort, Kentucky 40601

Mark Chellgren

Associated Press

The State Capitol

Frankfort, Kentucky 40601

James L. Thomerson, Esq.

Stoll, Keenon & Park

201 East Main Street

Suite 1000

Lexington, Kentucky 40507-1380