TO BE PUBLISHED 

94-OMD-127

October 25, 1994

IN RE: The News-Enterprise/City of Elizabethtown

OPEN MEETINGS DECISION

This matter comes to the Attorney General on the appeal of Susan Gayle Reed of The News-Enterprise as a result of a complaint Ms. Reed filed with the mayor of the city of Elizabethtown.

In a letter to the mayor, dated September 7, 1994, Ms. Reed complained about a matter that transpired at the city council meeting on September 6, 1994. She said that after approving an architectural firm to design the new courthouse the council at that time refused to name that firm based on "common courtesy." Ms. Reed cited KRS 61.805(3) which defines the term "action taken" and maintained that since action had been taken at the meeting on the matter the public is entitled to know at that time the decision that had been made.

John L. Arnett, Esq., the city attorney, responded to Ms. Reed on behalf of the city in a letter dated September 8, 1994. Mr. Arnett said the council did not vote to approve an architectural firm to design the courthouse. He referred to a municipal order which approved the hiring of an architectural firm but which said that "upon approval of the agreement, evidencing same, by the necessary parties, including the city planner and the city attorney, that the mayor of the city of Elizabethtown, and/or her designatee, be and she is authorized and directed to take all steps necessary to perfect this order." Mr. Arnett maintained that the mayor has neither executed the municipal order nor has she signed any agreement. At that point he had not seen any agreement nor had he approved any such agreement.

94-OMD-127

In her letter of appeal to this office, dated September 19, 1994, but not received until September 23, 1994, Ms. Reed again cited KRS 61.805(3) in support of her position. She said the mayor refused to let her staff divulge the information until the next day and after each of the firms had been notified of the city's decision. Ms. Reed said that when the council voted to approve the hiring of a firm, a city employee asked if council would care to hear the name of the firm it had approved. The mayor, she said, restrained this employee from supplying the name of the firm selected to the media until the other firms had been notified. While Ms. Reed received the name of the firm the next day, she is of the opinion that such information should have been made known at the council meeting.

Ms. Reed also submitted a copy of a portion of the transcript from the council's meeting of September 6, 1994, which indicated that the council did approve the order to hire an architect. The transcript further indicated that the mayor instructed city personnel to refrain from stating the architect who had been selected until after the other applicants had been notified.

The city council is obviously a "public agency" for purposes of the Open Meetings Act. See KRS 61.805(2)(c).

KRS 61.810(1) provides in part that all meetings of a quorum of a public agency at which any public business is discussed or at which any action is taken by the public agency shall be public meetings and open to the public.

The term "action taken" is defined in KRS 61.805(3) 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[.]"

The city council was involved in a public meeting on September 6, 1994. At that meeting it discussed public business including the construction of a courthouse and the selection of an architect to design that courthouse. The partial transcript of the minutes from that meeting indicates that not only was a motion adopted relative to the hiring of an architect but that a particular architect was selected by the council for the job under discussion.

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Since the city council at a public meeting made a choice as to what particular architect it had selected, that decision constituted "action taken" pursuant to KRS 61.805(3) and the public, including the media, was entitled to know at that specific point in time the nature of the action taken which in this situation would involve the name of the architect selected. The mayor violated the Open Meetings Act by withholding the result of the decision made by the council.

The city of Elizabethtown 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. Pursuant to KRS 61.846(5) the Attorney General must be notified of any action filed in the circuit court but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

1254/sjj

Copies of this decision

have been mailed to:

Susan Gayle Reed

408 West Dixie Avenue

Elizabethtown, KY 42701-2499

John L. Arnett, Esq.

City Attorney, City of Elizabethtown

128 West Dixie Avenue

Elizabethtown, KY 42701