Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
Open Meetings Decision
This matter comes to the Attorney General on appeal from the actions of personnel and legal counsel for the Board of Aldermen of the City of Louisville. R. Keith Cullinan, Esq., has requested "that the Attorney General look into this matter to determine if a violation has occurred, and, if so, how it must be remedied." He has cited KRS 61.805 to KRS 61.850, the statutory provisions constituting the Kentucky Open Meetings Act.
Along with materials submitted relative to the appeal under the Open Meetings Act Mr. Cullinan has sent this office copies of documents involving requests for access to documents. This decision will be confined to a review of the applicable sections of the Open Meetings Act and whether the public agency violated the provisions of KRS 61.805 to KRS 61.850. See KRS 61.846(2).
In a letter to the President of the Board of Aldermen, dated September 11, 1992, Mr. Cullinan stated that a meeting of the Board of Aldermen's Bonds/Labor Relations/Affirmative Action Committee that was to be held on July 27, 1992, but which was changed and rescheduled to July 23, 1992, did not comply with the sections of the Open Meetings Act pertaining to regular and special meetings. He requested that the Board of Aldermen void all actions taken by it and the committee arising out of and as a result of the committee meeting on July 23, 1992.
F. David Banks, Esq., counsel for the Board of Aldermen, replied to Mr. Cullinan in a letter dated September 16, 1992. He stated that the regular meeting of the committee in question was scheduled for July 23, 1992. Because of various vacation schedules, however, the regular meeting of July 23, 1992 was rescheduled for July 27, 1992. Other conflicts arose and the meeting scheduled for July 27, 1992 was changed again, this time to the original date of July 23, 1992.
Mr. Banks maintains that the meeting which was eventually held on July 23, 1992 was not a special meeting because it was held on its originally scheduled date. Even if it was a special meeting the notice provisions were satisfied because the Aldermen were notified of the meeting by the assistant clerk of the Board of Aldermen. Also, anyone on the Board's mailing list for the committee was mailed a notice of the committee meeting.
In his letter to the Attorney General, received September 28, 1992, Mr. Cullinan states that he was advised by the Clerk of the Board of Aldermen in mid July that the meeting in question was scheduled for July 27, 1992. On Wednesday, July 22, 1992, the Clerk's office advised Mr. Cullinan by telephone that the meeting was still scheduled for July 27, 1992. On the morning of July 27, 1992 the Clerk advised Mr. Cullinan by telephone that the meeting had been held on Thursday, July 23, 1992.
The Open Meetings Act was substantially amended by the 1992 session of the General Assembly (1992 Acts, Chapter 162, HB 16). KRS 61.800, a 1992 enactment, provides as follows:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
KRS 61.820 provides in part that a public agency shall provide for a schedule of regular meetings and that schedule shall be made available to the public. According to the meeting schedule of the committee in question a meeting was scheduled for July 23, 1992.
KRS 61.823 deals with special meetings. Any meeting which deviates from the regular schedule of meetings is a special meeting. The regular meeting of July 23, 1992 was rescheduled for July 27, 1992. We do not know whether any of the notice and posting requirements of KRS 61.823(4) and (5) were satisfied relative to the meeting of July 27, 1992, but on at least two occasions officials of the city advised Mr. Cullinan by telephone that the meeting in question was scheduled for July 27, 1992. At this point the city deviated from its regular meeting schedule. The city then again rescheduled the meeting, this time back to July 23, 1992. While the city maintains that it complied with the notice requirements (KRS 61.823(4)) there is no evidence that it satisfied the posting requirements (KRS 61.823(5)).
When the city changed the meeting date from July 27, 1992, the rescheduling of the rescheduled meeting constituted another special meeting even though it was held on the original regular meeting date. Thus the provisions of KRS 61.823 relative to special meetings and the notice and posting requirements became pertinent and applicable. The fact that the twice rescheduled meeting ended up being held on the original meeting date does not make it a regular meeting for purposes of KRS 61.820 particularly when city officials specifically informed Mr. Cullinan by telephone on two occasions that the meeting would be held on another date.
The public has the right to expect the city to follow its regular meeting schedule or to call special meetings following the required notice and posting requirements pursuant to KRS 61.823. When the city deviated from its regular meeting schedule and rescheduled that regular meeting any rescheduled meeting became a special meeting even if it eventually ended up being rescheduled on the original regular meeting date.
In meeting the statutory obligation imposed upon the Attorney General by KRS 61.846(2) to determine if the public agency violated the provisions of the Open Meetings Act, it is our decision that the meeting in question was a special meeting which required the city to follow the requirements of KRS 61.823 including those pertaining to notice and posting. Failure to follow these provisions constitutes a violation of the Open Meetings Act.
Either or both of the parties to this action may challenge this decision by filing an appeal with the appropriate circuit court within 30 days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.