94-ORD-111

NOT TO BE PUBLISHED 

94-OMD-111

September 21, 1994

IN RE: Larry G. Hull/Lewis County Board of Education

OPEN MEETINGS DECISION

This matter comes to the Attorney General on the appeal of Paul C. Harnice, Esq., on behalf of his clients, including, among others, Larry G. Hull, as a result of a complaint Mr. Hull filed with the Lewis County Board of Education.

In a letter to Kenneth Clark, Chairman of the Lewis County Board of Education, dated July 29, 1994, Larry G. Hull complained about a special meeting of the Lewis County Board of Education held on July 18, 1994. Mr. Hull cited KRS 61.823 and maintained that the notice of the special meeting was inadequate. He referred to information about the special meeting as it appeared in the local newspaper and alleged that the description of the agenda was not sufficient in detail to enable the school board to take action by voting to change the boundary lines of board members. In Mr. Hull's opinion, the newspaper announcement of the special meeting, which referred to a meeting to "consider changing the board members' division boundary lines" was not sufficient to permit the board to take action by actually voting on the matter. The board was limited to merely discussing the subject, according to Mr. Hull.

The board of education apparently did not respond to Mr. Hull's complaint within the three day time period and evidently still had not responded as of the date the letter of appeal was submitted to the Attorney General by Paul C. Harnice, Esq.

Mr. Harnice's letter of appeal, received August 26, 1994, attached a copy of an article from the local newspaper, dated July 16, 1994, referring to the special meeting of July

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18, 1994. Also attached was a copy of a section of the newspaper from July 18, 1994, labeled "Datebook," which listed among the "area events" the special meeting of the school board, the subject of which was, "Board member division boundary lines according to KRS 160.210." Mr. Harnice stated that these notices were insufficient to enable the school board to take action or vote on the issue in question and it was limited to merely discussing matters.

The role of the Attorney General in connection with appeals properly presented under the Open Meetings Act is to review the complaint and denial and issue a written decision which states whether the public agency violated the provisions of the Open Meetings Act. See KRS 61.846(2). Only a court of competent jurisdiction has the authority to void a rule, resolution, regulation, ordinance, or other formal action of a public agency which was adopted without substantial compliance with the requirements of the Open Meetings Act. KRS 61.848(5).

The duties and obligations of a public agency such as a board of education in connection with the receipt by its presiding officer of a complaint under the Open Meetings Act are set forth in KRS 61.846(1):

The Lewis County Board of Education clearly violated the Open Meetings Act, specifically KRS 61.846(1), when it failed to respond in writing within the statutorily mandated time frame to the complaint filed with the chairman-presiding officer of that board by Larry G. Hull. The school board should immediately respond in writing to Mr. Hull's written complaint.

There has been much written in the few documents submitted to this office about the requirements for holding a special meeting, particularly the notice requirements and the content of those notices. KRS 61.823 deals with special meetings and subsections (3) and (4)(a) and (b) of that statute deal with the notice requirements.

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KRS 61.823(3) requires the public agency to provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda.

KRS 61.823(4)(a) requires that written notice of the special meeting be delivered by one of several approved methods of delivery to every member of the public agency and to each media organization which has filed a written request to be notified of that agency's special meetings.

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.

We do not know if the public agency followed the delivery and posting requirements of KRS 61.823 and we do not know the actual contents of those delivered and posted notices as nobody has furnished the Attorney General with a copy of the actual notice of the special meeting. The only references to what would be done at the special meeting on July 18, 1994 were an article in the local newspaper on July 16, 1994, discussing the upcoming special meeting, and a copy of the "Datebook" column from the local newspaper on July 18, 1994, briefly mentioning the meeting scheduled for that day.

It is not the function of this office "to make the case" for either the public agency or the complaining party. We simply cannot decide the issue of the adequacy of the contents of the delivered and posted notices when nobody has furnished us with a copy of the actual notice.

In connection with KRS 61.823 and the requirements for conducting a special meeting both parties may wish to examine 92-OMD-1840 and 92-OMD-1677. In addition, 4 McQuillin Mun. Corp. (3rd Ed.),  13.12 and 13.13, dealing with specification of notices may be of interest.

Either Larry G. Hull or the Lewis County Board of Education 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

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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

sjj/1109

Copies of this decision

have been mailed to:

Paul C. Harnice, Esq.

Attorney for Larry G. Hull

Stoll, Keenon & Park

326 W. Main Street

Frankfort, Kentucky 40601

Kenneth Clark, Chairman

Lewis County Board of Education

HC 73, Box 250

Vanceburg, Kentucky 41179-9401