NOT TO BE PUBLISHED

95-OMD-64

April 21, 1995

IN RE: Dick Moore/Owensboro Municipal Utilities

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by Dick Moore as a result of the written response he received from Patrick D. Pace, Esq., legal counsel for the Owensboro Municipal Utilities. Mr. Moore maintains that OMU violated the Open Meetings Act, particularly the provisions pertaining to special meetings.

In a letter to the OMU Board Chairman, dated March 17, 1995, Mr. Moore referred to a special meeting of the board of directors on March 16, 1995, at which a quorum was present. He maintained that the newspaper was not notified of the special meeting twenty-four hours in advance, that no agenda was included in the meeting notice, and that no notice was posted at the city hall or at the Campbell Club where the actual meeting took place. Mr. Moore further stated that a work session of a public body attended by a quorum of its board members is a public meeting under the Open Meetings Act. He asked that all notes and tapes relative to the meeting be made available and that OMU determine from discussions with the board members in attendance precisely what transpired at the meeting.

Mr. Pace, on behalf of OMU, replied to Mr. Moore, in a letter dated March 22, 1995, and advised that the work session held on March 16, 1995 was not a "meeting" as the term is defined in KRS 61.805(1). It was an informational session and did not involve "action on any matters of public business." He further said that to avoid the issue of whether the work session was a special meeting, OMU complied with the requirements pertaining to special meetings. Written notice of the "meeting" containing the date, time, place, and the agenda were timely given to the OMU board members and those media organizations entitled to such notice. Notice was timely posted at the OMU headquarters but since the "meeting" was held in conjunction with a luncheon at a restaurant, no notice was posted at that site. Mr. Pace concluded his letter by stating that since no official business was conducted and no final action was taken, there are no minutes, and the personal notes made by those in attendance are not subject to public inspection. He denied that OMU violated the Open Meetings Act.

Mr. Moore's letter of appeal and the necessary supporting documents were received by the Attorney General on April 10, 1995.

KRS 61.805(1) defines "meeting" as

all gatherings of every kind, including video teleconferences, 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[.]

KRS 61.810(1) provides in part that, "All 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[.]"

These definitions are broader in scope and coverage than what OMU contemplates. They go beyond "action on any matters of public business" and cover meetings of a quorum "at which any public business is discussed." See OAG 78-411, copy enclosed, at page two. This office concluded in OAG 82-91, copy enclosed, that a work session attended by a quorum of the fiscal court, at which the preparation of the budget is discussed, is an open and public meeting.

By definition a gathering of a quorum of the members of a public body, at an event described as a work session, must involve at least the discussion of public business or it would be a private session as opposed to a work session. It is, therefore, our decision that the public agency's work session, held on March 16, 1995, constituted a public meeting subject to the terms and provisions of the Open Meetings Act.

As the meeting in question was a public meeting subject to the Open Meetings Act, and since it was not a regular meeting, it had to be a special meeting controlled by the provisions of KRS 61.823. See 92-OMD-1840, copy enclosed, at page three.

KRS 61.823(3) and (4)(a) require that written notice of the special meeting, consisting of the date, time, and place of the special meeting and the agenda, be delivered to every member of the public agency and to each media organization which has filed a written request to receive such notice. The notice must be received at least twenty-four hours before the special meeting. Since no board member or media entity has complained of failure to receive the required notice we conclude that the required notice was timely delivered.

KRS 61.823(4)(b) requires that written notice of the special meeting be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The public agency complied with the statute to the extent that the notice was posted in its headquarters building. It violated the statute by failing to post the required notice in a conspicuous place in the building where the special meeting took place. It was not required in this situation to post the required notice at the city hall facility.

KRS 61.835 sets forth the minimal requirements pertaining to the keeping of the minutes of a public agency. The statute requires that the minutes of action taken at every meeting of any public agency, setting forth an accurate record of votes and actions at such meetings, shall be recorded and open to public inspection at reasonable times. If at the meeting in question nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to public inspection. While some agencies may by their own regulations require more thorough minutes, the Open Meetings Act requires only what is set forth in KRS 61.835 relative to the minutes. The agency violated the Open Meetings Act only if its actions concerning minutes did not conform to the provisions of KRS 61.835.

Either party to this appeal or both of them 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

TRE:sjj

Enclosures

Copies of this decision

have been mailed to:

Dick Moore

2722 Bittel Road

Owensboro, Kentucky 42301

Patrick D. Pace, Esq.

322 Frederica Street

Owensboro, Kentucky 42301