Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the East Knox County Water District violated the Open Meetings Act in a meeting held on September 15, 1997, and in its handling of Glen D. Mills's complaint concerning this meeting. On September 30, 1997, Mr. Mills submitted a complaint to Knox County Judge/Executive Jimmy Hinkle in which he alleged that the East Knox County Water District conducted a secret joint meeting with the Dewitt Water District. As a means of remedying this violation, Mr. Mills proposed that the actions of the East Knox County Water District be voided, and that future meetings be properly conducted under the provisions of the Open Meetings Act. Sixty days after his complaint was submitted, and having received no response from Judge Hinkle, Mr. Mills initiated this appeal to the Attorney General.
Upon receipt of this office's notification of open meetings appeal, the Water District, through Judge Hinkle, issued a response to Mr. Mills's complaint. Judge Hinkle acknowledged that a joint meeting of the two water districts was conducted on September 15, but explained:
The East Knox County Water District recently came out of receivership and commissioners were appointed for its management. On September 15, 1997, these newly appointed commissioners asked if they could meet with the Commissioners from the Dewitt Water District and have an informal round-table discussion. The purpose of this discussion was to educate the individual commissioners as to their duties and responsibilities as Commissioner. KRS 61.810(2) states in part that "nothing in this subsection shall be construed to prohibit discussion between individual members where the purpose of the discussion is to educate the member on specific issues." No public business was discussed, no action was taken by either Board of Commissioners, nor was this meeting conducted as if the Water District had merged.
Continuing, he observed:
A Meeting of the East Knox County Water District was held on October 30, 1997, however, it was not intended to be secretive. Having recently come out of receivership, the Commissioners were still trying to become familiar with, and get a handle on their duties. They had not established a regular meeting date at the time of the October 30 meeting. They have now established the first Tuesday of each month as the regular meeting date. Any failure to comply with KRS 61.805-KRS 61.850 was unintentional and the East Knox County Water District is now in compliance.
In closing, Judge Hinkle emphasized that although "oversights may have occurred" as the newly appointed commissioners assumed their duties, "no one in [the] Knox County Judge/Executives [sic] Office, the Knox County Fiscal Court, and the East Knox County Water District knowingly did anything improper." Regardless of whether the Water District's conduct was intentional, we find that the Water District violated the Open Meetings Act when it met with the Dewitt Water District on September 15 to discuss the duties and responsibilities of the new commissioners.
We begin by noting the limited scope of our authority under the Open Meetings Act. At page 3 of 94-OMD-60, we stated that "KRS 61.846(2) limits the Attorney General, in handling appeals under the Open Meetings Act, to rendering a decision as to whether the public agency violated the provisions of the Act." We are not empowered to resolve controversies relating to terms of appointments to the board of a water district, water service, or water rates. Nor are we empowered to issue injunctions, restore former commissioners to their positions, order that customers be reimbursed for rate increases, or impose disciplinary action. Relief for these grievances is available, if at all, through the Public Service Commission under authority of Chapter 74 of the Kentucky Revised Statutes, and in particular, under KRS 74.361 et seq. We therefore confine our analysis to issues arising under the Open Meetings Act.
We find that the East Knox County Water District violated the Open Meetings Act by failing to respond in writing, and within three business days, to Mr. Mills's September 30 complaint. KRS 61.846(1) provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint and notify in writing the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. We urge the Water District to review the cited provision to insure that future responses conform to the Open Meetings Act.
We further find that the Water District violated the Act when it conducted a special meeting on September 15 to discuss the duties and responsibilities of its newly appoint commissioners without complying with the requirements of KRS 61.823.
The Open Meetings Act mandates that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times. . . ." KRS 61.810(1). A meeting is defined as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation or in conjunction with a regular or special meeting. " KRS 61.805(1). The East Knox County Water District is a public agency for purposes of the Open Meetings Act, and is subject to the requirements of the Act.
The law imposes a duty on public agencies to provide written notice of all special meetings. Indeed, "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Failure to comply "with the strict letter of the law in conducting meetings of a public agency violates the public good." Id. , citing E. W. Scripps Co. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990). Underlying these observations is the fundamental principle that "the formation of public policy is public business and shall not be conducted in secret. . . ." KRS 61.800.
In 92-OMD-1840, this office observed:
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.
92-OMD-1840, p. 3. It is the opinion of this office that the meeting of the East Knox County Water District, which was attended by a quorum of the members of that body for informational purposes, was a special meeting which violated KRS 61.823 because it was not preceded by the statutorily mandated notice. The meeting was called by a majority of the members of the Water District. KRS 61.823(2). There is no indication in the record that a quorum of the members was not present. KRS 61.810(1). Most importantly, public business was discussed, that being the duties and responsibilities of the newly appointed commissioners. KRS 61.810(1). We are not persuaded that such discussions are not the public's business. Indeed, we can imagine few topics of greater interest to the public than the duties of the governing body of a public agency.
We reject the Water District's argument that KRS 61.810(2) excused it from its obligations under KRS 61.823. KRS 61.810(2) provides:
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.
This provision is directed at public agencies which hold a series of less than quorum meetings with the intent to circumvent the Open Meetings Act, and provides a narrow exception for discussions between individual members aimed at educating the members on specific issues. It cannot be construed so broadly as to permit meetings at which a quorum of the members of the public agency are present, and matters of direct public interest are discussed. We therefore conclude that the East Knox County Water District violated KRS 61.823 on September 15, 1997, by failing to provide adequate notice of the meeting held on that date. Although the Water District maintains that no action was taken at this meeting, had any action been taken it would have been voidable pursuant to KRS 61.848(5).
With respect to the Water District's admission that it conducted a meeting on October 30, 1997, which did not comply with the requirements of the Open Meetings Act, though this noncompliance was unintentional, we find that this issue is not ripe for review. No complaint has been filed with the Water District concerning this meeting, and no appeal has been filed with the Attorney General. Nevertheless, we remind the Water District that the defense that a violation was "unintentional is completely unacceptable as a response or solution to a complaint alleging a violation of the Open Meetings Act. " 92-OMD-1840, p. 3. Should the Water District receive a complaint relating to this meeting, it would do well to remedy the violation rather than to deny it on the grounds that it was unintended.
A party aggrieved by this decision may challenge 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 in Circuit Court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.