TO BE PUBLISHED

96-OMD-261

December 6, 1996

In re: Mark R. Chellgren/Workers' Compensation Advisory Council

Open Meetings Decision

This matter comes to the Attorney General as an appeal by Mark R. Chellgren in connection with his complaint filed against the Workers' Compensation Advisory Council.

In a letter directed to the co-chairmen of the Workers' Compensation Advisory Council, dated November 18, 1996, Mr. Chellgren questioned the legality of the decision of the Council to adjourn into “caucuses” and meet separately as business and labor interests. Mr. Chellgren requested that the council members cease their illegal meetings and conduct their discussions in open and public sessions.

In his letter of appeal to the Attorney General, dated November 21, 1996, Mr. Chellgren mentioned the Council's refusal to open its meetings to the public and its failure to respond in writing to the complaint set forth in his letter of November 18, 1996. Mr. Chellgren stated that the Council's acting co-chairman, Morgan Bayless, responded orally that the Council had complied with the law. Mr. Chellgren further said that the Council consists of sixteen members, equally divided between business and labor representatives, and breaking into two caucuses consisting of less than a quorum to discuss matters violates the letter and spirit of the Open Meetings Act.

KRS 342.0012 creates the Workers' Compensation Advisory Council, consisting of sixteen members appointed by the Governor. The members of the Council are required to elect co-chairmen on an annual basis. A majority of the members of the Council constitutes a quorum for the transaction of business. Of the sixteen appointees eight are required to be representatives of labor and eight are required to be representatives of management. The Council shall serve in an advisory capacity and shall make recommendations to the Governor and the General Assembly on all matters relating to workers' compensation.

The Workers' Compensation Advisory Council is obviously a “public agency” for purposes of the applicability of the Open Meetings Act. “Public agency” is defined in part in KRS 61.805(2) as every state government board, commission, and authority; every state agency created by or pursuant to a state statute; any body created by or pursuant to state statute; and any advisory committee established, created, and controlled by a public agency.

As a public agency subject to the terms and provisions of the Open Meetings Act, the Workers' Compensation Advisory Council is required to follow KRS 61.846(1) which in part states as follows:

The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, 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.

The Workers' Compensation Advisory Council violated the Open Meetings Act to the extent that it failed to furnish to the person making the complaint a timely written response to that complaint.

KRS 61.810(1) provides in part that, generally, all meetings of a quorum of the members 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. In an attempt to correct those situations where public agencies were meeting in groups of less than a quorum to avoid the application of the Open Meetings Act, the General Assembly, in 1992, enacted what became codified as KRS 61.810(2):

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.

The above quoted provision indicates that there can be situations where a meeting of less than a quorum of the members of a public body constitutes a public and open meeting of the public agency. In order for that to happen we would have to be able to make at least two findings. The first would be that this practice has occurred on more than one occasion as the statute contemplates a “series of less than quorum meetings.” The second would be that the purpose of holding such gatherings is to avoid the requirements of the Open Meetings Act and that these less than quorum gatherings involve matters which under the Open Meetings Act are required to be discussed or acted upon in an open and public forum. We cannot make such definitive findings as the letters of the complaining party are nonspecific on these issues and the public agency has failed to provide anything whatsoever.

If there have been a series of less than quorum meetings where the number of members attending those meetings collectively total at least a quorum of the members of this particular agency (which is nine members), and if those meetings were conducted for the purpose of avoiding the requirements of the Open Meetings Act mandating open and public meetings where public business is discussed or acted upon, the Workers' Compensation Advisory Council has violated the Open Meetings Act. See 94-OMD-06, a copy of which is enclosed.

Had this been an appeal under the Open Records Act (KRS 61.870 to KRS 6.884), which imposes the burden of proof in sustaining a denial of a request upon the public agency (KRS 61.880(2)(c), this matter could have been conclusively resolved in favor of the complaining party. We would have decided that the public agency failed to meet its burden of proof. The Open Meetings Act, however, contains no such provision relative to the public agency's burden of proof. In addition, the Open Meetings Act does not authorize this office to extend for any reason the time limit in which to reach a decision, as does the Open Records Act in KRS 61.880(2)(b).

A party aggrieved by this decision may appeal it 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 proceeding under the Open Meetings Act.

A. B. Chandler III

Attorney General

Thomas R. Emerson

Assistant Attorney General

1380

Copies of this decision

have been distributed to:

Mark R. Chellgren

Correspondent

The Associated Press

The State Capitol

Frankfort, Kentucky 40601

Morgan Bayless

Acting Co-Chairman

Workers' Compensation Advisory Council

P.O. Box 158

Middlesboro, Kentucky 40965