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 Powell County Board of Education violated the Open Meetings Act at its February 27, 1998, special meeting, the subject of which was staff reductions. For the reasons that follow, we find that the Board's actions at and before the meeting constituted a partial violation of the Act.
On March 9, 1998, Mrs. Jonnie V. Southworth submitted a written complaint to John Cunningham, chairman of the Powell County Board of Education, in which she alleged that five separate violations of the Open Meetings Act were committed before, during, and after the February 27 meeting. Those violations were identified as follows:
1. Notice of special meeting failed to include an agenda;
1. Meeting was held at a time and place which was not convenient to the public;
1. Action was taken by the Board before the meeting was called to order;
1. Board failed to keep those in attendance, but who could not observe, apprised of actions taken at the meeting;
1. Board conducted additional business after meeting had been formally adjourned.
Mrs. Southworth suggested various remedial measures, including a proposal that the Board nullify the actions taken at the meeting and "revert to old [staffing] policy," provide adequate notice of special meetings, schedule these meetings at times and places convenient to the public, and adhere to the letter of the Open Meetings Act in conducting future meetings.
In a letter dated March 12, 1998, Mr. Cunningham responded to Mrs. Southworth's complaint. Mr. Cunningham refused to implement the remedial measures proposed because "the intent and purpose of the Open Meetings Act was not violated by the special meeting of February 27, 1998." He explained:
The action taken by the board on February 27 was action it had no choice but to take, to be in compliance with state laws and regulations. The staffing policy had already been set in a prior meeting, and the state required that certain language be used in the plan, which had been omitted. Even if the February 27 meeting had not occurred, the correction would have to be made. The remedy you request, of reverting to the 1997-98 staffing allocation for the 1998-99 school year, is not possible.
In closing, Mr. Cunningham agreed to "make additional efforts to ensure that future board meetings are open and accessible to the public, with good notice given according to the requirements of the law." This appeal followed.
The issues presented in this appeal arise from a controversy in the Powell County School System concerning planned staff reductions in the next school year. Our review of the copious materials presented to this office indicates that the February 27 special meeting was hastily arranged to ensure that the school system's staffing allocation was filed with the Department of Education by March 1. Although a plan had been approved by the Board at its February 9 regular meeting, and forwarded to the Department on February 26, the Department advised the superintendent of the Powell County Schools that specific language must be included in the staff allocation, and this omission must be corrected. The February 27 special meeting was called to correct the omission.
Few local issues stimulate greater public interest and arouse greater public passion than issues relating to the local school system. For this reason, it is essential that the officials elected to control and manage the affairs of the system comply with not just "the intent and purpose" of the Open Meetings Act, but the letter of the Act. The General Assembly has thus declared that, "the formation of public policy is public business and shall not be conducted in secret[.]" In interpreting the Act,, the Kentucky Supreme Court recently observed:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing
E.W. Scripps Co. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990). While we recognize that the exigencies of the situation in which the Powell County Board of Education found itself on February 26 may account for its failure to comply with the letter of the Open Meetings Law at its February 27 meeting, those exigencies to not excuse the Board from faithfully discharging its statutory duty. Mrs. Southworth's allegations of violations of the Act and the Board of Education's responses to those allegations are summarized below, along with our analysis of the propriety of those responses.
Adequacy of Notice
In the March 9 complaint to Mr. Cunningham, Mrs. Southworth alleged that the notice of the February 27 special meeting which was posted at the office of the Powell County Board of Education was inadequate because it did not include an agenda. Mr. Cunningham responded that the notice complied in all material respects with the requirements of KRS 61.823, and that the agenda was "on the table near the door." He noted that "nothing was considered at the meeting which was not on the agenda. "
KRS 61.823(3) states that in the event of a special meeting, the public agency must provide written notice. The notice must contain "the date, time, and place of the special meeting and the agenda ." (Emphasis added.) This provision operates in tandem with KRS 61.823(4)(b) which requires that as soon as possible, but at least twenty-four hours before the special meeting, "written notice shall 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."
In 96-OMD-216, this office held that the failure to include the agenda in the written notice of a special meeting constituted a violation of the Open Meetings Act. See also 94-OMD-119. We reach the same conclusion in this appeal. It is not sufficient, in our view, to place the agenda on a table 'within sight of and close to the door." As Mrs. Southworth correctly observed, the failure to include the agenda in the posted notice rendered it inaccessible to the public for any and all of the twenty-four hours preceding the special meeting that the offices of the Board of Education were closed. We are not persuaded that the Board's actions relative to the posted notice represented substantial compliance with KRS 61.823(3) and (4)(b). Rather, we find that the omission of the agenda from that notice constituted a violation of the strict letter of the Open Meetings Act.
Time and Place of Meeting
Mrs. Southworth's second allegation centered on the Powell County Board of Education's failure to schedule this special meeting at a time and place which was convenient to the public. In his response, Mr. Cunningham offered various explanations for the decision to hold the meeting at 9:00 a.m. on a school day in the Board's office. With respect to the time of the meeting, he noted that the final staff allocation plan had to be filed with the Department of Education on March 1, and that it was not until February 26 that the Board learned that a special meeting would have to be called to permit compliance with the filing deadline. "In order to ensure that a quorum of board members could attend," Mr. Cunningham explained, "their schedules had to be accommodated." He assured Mrs. Southworth that "there was no intent to meet in secret by scheduling the meeting at 9 a.m."
As to the site of the meeting, Mr. Cunningham responded that Board meetings were "routinely held" at the Board's offices, and "attendance was not expected to exceed the capacity of the room." The site of the meeting could not be changed, he argued, because to do so would further delay the meeting. In view of the filing deadline and the Board members' previous commitments, Mr. Cunningham maintained that moving the meeting was not feasible. Alternative meeting places were rejected, he noted, because facilities at the neighboring elementary school were in use and the meeting room at the public library was not "appreciably larger" than the Board room.
KRS 61.820 provides that "all meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public." The Open Meetings Act imposes a corollary duty on public agencies at KRS 61.840 by requiring that "all agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings."
In construing the first of these provisions, the Attorney General has observed:
The phrase "convenient to the public" is not defined or explained anywhere in the Open Meetings Act. It is obvious that the public agency has some flexibility and discretion in determining what is a convenient day and time. It is equally obvious . . . that no matter what day and time are selected . . . those decisions will meet with less than full and complete approval . . . ."
96-OMD-264, p 2. Thus, in a series of open meetings appeals, complainants have unsuccessfully challenged meetings held during the school day (95-OMD-106); at 9:00 a.m. (93-OMD-20); at 2:45 p.m. (96-OMD-262); at 5:00 p.m. on Wednesday (96-OMD-264); and late into the evening (92-OMD-1728). These open meetings decisions confirm that no time is convenient to each and every member of the public. Because no single day and time will meet with universal approval, the Attorney General has given public agencies considerable latitude in scheduling their meetings, and has never held that an agency intentionally scheduled a meeting at an inconvenient time as to the public generally.
While we recognize that the timing of the Powell County Board of Education's February 27 special meeting was likely to exclude the members of the system with the greatest stake in the matter under discussion, namely the effected teachers, as well as the members of the public with the greatest interest in the matter under discussion, namely the parents of the effected school children, we cannot conclude, on the evidence presented, that 9:00 a.m. was an inconvenient time in contravention of KRS 61.820. The record reveals that the meeting was arranged on one day's notice, and with only one day remaining to correct a critical omission in the school system's staffing plan. Some or all of the Board members were scheduled to attend a seminar sponsored by the Kentucky School Board Association in Louisville at 1:00 p.m. If the Board had had the luxury of several days to correct its omission, the law would have contemplated a greater attempt to accommodate the needs of teachers and parents directly affected by the matter before it. As in our past decisions, "we cannot conclude on the basis of what has been made available to this office" that 9:00 a.m. was an inconvenient time for the public generally, or for those persons interested in matters affecting the Powell County School System specifically. 96-OMD-262, p. 2.
Nevertheless, the Attorney General has, on at least one occasion, declared that a public agency's failure to address the problem of overcrowding at the site selected for a meeting constitutes a violation of the Open Meetings Act. See, e.g. , 97-OMD-98. In the cited decision, this office held that the Henderson County Board of Education violated the Act because it did not take action when confronted with a larger than anticipated crowd. We reasoned:
It may be that on most occasions the site of the . . . meeting would have been sufficient to accommodate the anticipated crowds. Since on this particular day the meeting site could not accommodate the number of people attending the meeting, the public agency was under a duty to make some attempt to correct this matter. Neither the Open Meetings Act nor decisions of this office specify the particular action an agency must take; rather, the agency's actions are dependent on the particular factual situation. It is not enough to concede that the meeting room was crowded. The public agency had an obligation to address the problems, particularly with regard to . . . those in the hallway outside the meeting room.
97-OMD-28, p. 2. We believe that this decision is dispositive of the issue before us.
There is evidence in the record that the lunchroom of the neighboring elementary school was available as an alternative location for the meeting. And although the parties do not agree about the size of the meeting room of the public library, it appears from the record that this site had been successfully used in the past for public meetings. Given the demonstrated interest in the issue of staff reductions, it was unreasonable for the Board to assume that "attendance [would] not . . . exceed the capacity of the room." When it became apparent that the crowd could not be accommodated, the Board "was under a duty to make some attempt to correct this [problem]." 97-OMD-28, p. 2. Its failure to make "a good faith effort to handle the overflow crowd so that persons in the hallway . . . could have observed the public proceedings," constituted a violation of the Open Meetings Act.
Business Conducted After Meeting Adjourned
Mrs. Southworth alleged, and Mr. Cunningham acknowledged, that the Board improperly conducted additional business after the special meeting was formally adjourned. Although he initially denied that this violation occurred, "upon review of the board records" Mr. Cunningham conceded that the vote to adjourn was taken before a discussion of an "emergency measure" relating to the staff reduction, and that therefore this matter was not considered during the meeting. He agreed to correct the minutes of the meeting.
In a follow-up letter to this office, the Board's attorney, Ruth Webb, accepted responsibility for this error, explaining that it was she who asked "the board to declare that the staffing allocation was an emergency measure, not realizing that a vote to adjourn had already been taken." Ms. Webb noted that the emergency declaration was not necessary, and that she would recommend that the declaration be stricken from the minutes at the Board's next meeting.
If, in fact, the Board follows the course of action recommended by Ms. Webb at its next meeting, the issue presented in this portion of Mrs. Southworth's appeal will be moot. This scenario can be analogized to an open records appeal in which a public agency initially denies a request for records and an appeal is filed, but the agency releases the records before the Attorney General issues his decision. In such instances, 401 KAR 1:030, Section 6, specifically provided that "the Attorney General shall decline to issue a decision in the matter." Although the regulation does not extend by its express terms to open meetings appeals, we believe that its underlying logic applies with equal force in these appeals. Where the agency concedes error, the issue upon which that portion of the appeal is based becomes academic or moot.
We are aware that the course of remedial action which Mrs. Southworth proposed is not the course of remedial action which the Board will take if it follows Ms. Webb's advice. Our review, however, is confined to the issue of whether the agency violated the Open Meetings Act, and not the remedial measures it implements. See KRS 61.846(2) (providing that the Attorney General shall issue "a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850"); see also, 93-OMD-49, 93-OMD-81; 94-OMD-83; 94-OMD-111. The Board violated the Open Meetings Act when it conducted additional business after the meeting was adjourned. Although it originally denied that this violation had occurred, it now acknowledges the violation. If it remedies this violation by striking the emergency declaration from its minutes of the February 26 meeting at its next meeting, the issue presented in this portion of Mrs. Southworth's appeal will be moot.
Issues Which Are Not Capable of Resolution Under the Open Meetings Act
Mrs. Southworth raises two remaining issues which, in our view, are not capable of resolution under the Open Meetings Act. The first concerns action taken by the Board before the meeting was called to order, and the second concerns the Board's failure to keep persons in attendance at the meeting who could not observe the proceedings apprised of actions taken at the meeting.
As noted above, the Attorney General's role in adjudicating an open meetings dispute is a narrow one. This office is not empowered to resolve disputes which involve issues that are beyond the scope of the Act. Thus, in OAG 78-522, we observed:
The state legislature has not dictated . . . procedural rules relating to the conduct of meetings, and as a consequence, each . . . [public] body must adopt its own rules of procedure. Many [agencies] adopt those rules promulgated in Robert's Rules of Order or some other manual of legislative procedure such as Mason's for the orderly conduct of their meetings.
OAG 78-522, p. 2. Such issues as the manner in which a vote is taken or who decides if a meeting is to be moved before the meeting is convened are not addressed by the Open Meetings Act. The Act does not require a roll call vote, nor does it require formal action of the agency to move the meeting to a different location to accommodate an overflow crowd of observers. Accordingly, we do not find that the Powell County Board of Education violated the Open Meetings Act in conducting its vote by a show of hands and failing to apprise those who were unable to observe how each vote was cast. Nor did the Board violate the Act when Mr. Cunningham decided, prior the formal commencement of the meeting, to remain in the Board's offices. While these actions may not have been prudent, they did not rise to the level of violations of the Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4) and KRS 61.848(2). The
Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.