Request By:
IN RE: Bob A. Finley/Michael L. Schulkens, Esq.
Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General on the appeal of Bob A. Finley as the result of a letter he received from Michael L. Schulkens, Esq., City Solicitor for the city of Newport.
In a letter to the mayor and commissioners of the city of Newport, dated November 30, 1992, Mr. Finley said he had reason to believe that the city commissioners and others conducted a meeting concerning acts of the former mayor and other city business in violation of the Open Meetings Act. He requested the city commission admit the violations and make known all matters discussed at the meeting on August 23, 1992, at the home of one of the commissioners. He said that minutes of the meeting should be made public, he asked who called the meeting, and he requested that the city state why the meeting did not violate the Open Meetings Act.
Mr. Schulkens, in a letter to Mr. Finley, dated December 3, 1992, replied in part as follows:
The City has previously received timely requests under the Open Meetings Law of the Kentucky Revised Statutes to which the City has responded. These responses, as well as all of the circumstances surrounding the August 23, 1992, date have been explained and scrutinized in correspondence, the media, and most importantly at City Commission Meetings. Continued discussion on this matter stirs a controversy where none exists, serves no legitimate purpose and works to the detriment of the City.
With all of this in mind, suffice it is to say that pursuant to the definition of "meeting" under the Open Meeting Statutes there was no meeting held on such date in violation of state law.
The City is cognizant of its duties and responsibilities under the Open Meetings Law and has done its best to comply with same and will always continue to do so. If any violation occurred on this date or any other date it was purely accidental and unintentional.
In his letter to the Attorney General, received December 14, 1992, Mr. Finley maintained that on or about August 23, 1992 a city commissioner contacted other commissioners to meet at his home to discuss the resignation of the mayor and what to release to the news media. He stated that a meeting was conducted within the meaning of the Open Meetings Act and neither the public nor the media were notified of the meeting. Mr. Finley concluded by stating that the commission should apologize to the public, it should release any minutes of the meeting, it should void any actions taken at the meeting, and the commission should agree to hold all future meetings in compliance with the Open Meetings Act.
In regard to the city's duties and responsibilities relative to a complaint received under the Open Meetings Act KRS 61.846(1) states in part as follows:
An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply.
Thus no matter how many requests or complaints the city may have received under the Open Meetings Act relative to the events of August 23, 1992, each one must be responded to in the manner required by KRS 61.846(1). The fact that the city has previously responded to other complaints about the alleged meeting does not lessen or eliminate the city's duties and responsibilities concerning Mr. Finley's complaint under the Open Meetings Act.
The city's response, with no citations or explanations, merely concludes that no meeting was held in violation of the Open Meetings Act. The city's statement that if any violation occurred "it was purely accidental and unintentional" is completely unacceptable as a response or solution to a complaint alleging a violation of the Open Meetings Act.
While this office can categorically conclude that the city's response of December 3, 1992 to Mr. Finley is statutorily insufficient, the city's failure to properly respond prevents us from determining precisely what transpired on August 23, 1992. We can merely set forth what appear to be the applicable statutory provisions.
The term "meeting" is defined in part in KRS 61.805(1) as all gatherings of every kind, regardless of where the meeting is held. KRS 61.810(1) states that all meetings of a quorum of the members at which any public business is discussed or at which any action is taken are public meetings with certain statutorily enumerated exceptions.
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. Failure to follow all of these provisions constitutes a violations of the Open Meetings Act.
In fulfilling the statutory obligation imposed upon the Attorney General under KRS 61.846(2) to determine if the public agency violated the Open Meetings Act, it is our decision that the city's response of December 3, 1992 to the complaint filed under the Open Meetings Act is statutorily deficient. If the allegations of Mr. Finley as to the events of August 23, 1992 involving the city commission are correct, the city violated the Open Meetings Act.
Either the city of Newport or Mr. Finley 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.