Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This is a companion appeal to 98-OMD-74, initiated on the same date, and involving the same parties. The appeal presents many of the same issues which were presented in 98-OMD-74, and arises out of three special meetings of the Powell County Board of Education conducted on January 29, 1998, February 27, 1998, and March 9, 1998. Resolution of these issues is largely determined by our decision in 98-OMD-74, and the legal reasoning set forth therein. That decision is adopted in full and incorporated by reference. Based on 98-OMD-74, we again conclude that the Board of Education's actions constituted a partial violation of the Open Meetings Act.
On March 27, 1998, Jonnie Southworth submitted a written complaint to John Cunningham, chairman of the Powell County Board of Education, in which she alleged seven separate violations of the Open Meetings Act. Those violations were identified as follows:
1. The minutes of the February 27, 1998, special meeting did not accurately reflect the action taken at the meeting or action taken after the meeting was formally adjourned;
2. Notice of January 29, 1998, special meeting posted on the door of the Board's offices did not include an agenda;
3. The special meeting conducted on January 29, 1998, was not convenient to the public because schools were closed as a result of a flu epidemic;
4. Notice of March 9, 1998, special meeting posted on the door of the Board's offices did not include an agenda;
5. Notice was not posted at the site of the March 9, 1998, special meeting held at the Stanton Elementary School gymnasium;
6. Notice of the March 9, 1998, meeting was not posted as soon as possible;
7. The decision to move the March 9, 1998, special meeting from 7:00 p.m. to 5:30 p.m. was not convenient to the public, many members of which were then engaged in preparations for the regional basketball tournament held later that evening.
As in her earlier appeal, Mrs. Southworth proposed various remedial measures including a declaration that the actions taken at the February 27, 1998, meeting are invalid, strict compliance with the notice requirements of the Open Meetings Act, and scheduling of meetings at times and places which are convenient to the public.
In his April 1, 1998, response, Mr. Cunningham again asserted that remedial measures need not be taken "as the intent and purpose of the Open Meetings Act was not violated by the meetings of January 29, February 27, and March 9." The Powell County Board of Education's responses to Mrs. Southworth's allegations are summarized below, along with our analysis of the propriety of those responses.
Allegations 2, 4, 5, and 6 Relating to Adequacy of Notice
Mrs. Southworth alleged that the Board's notice of special meetings conducted on January 29 and March 9 were deficient because they did not include an agenda, and were not properly posted. Mr. Cunningham responded, as before, that an agenda was placed on a table near the door where the notice was posted. He did not respond to the allegation that the notices were not properly posted. Based on the reasoning set forth in 98-OMD-74, it is the opinion of this office that the Board failed to comply with KRS 61.823(3) and (4)(b) relative to proper notice of special meetings.
At page 4 of 98-OMD-74, this office observed:
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 61.8123(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."
(Emphasis added.) There, we concluded that the Powell County Board of Education's failure to include an agenda in its special meeting notice constituted a violation of the Open Meetings Act. We reach the same conclusion in this appeal, and hold that the Board violated the Act by omitting the agenda from the posted notice.
Mr. Cunningham did not respond to Mrs. Southworth's allegation that the Board did not post a notice of the March 9 special meting in a conspicuous place at the Stanton Elementary School where the meeting was held. We therefore assume the truthfulness of this allegation. KRS 61.823(4)(b) is clear on its face as to the posting requirement. We will not belabor the issue. The Board's apparent failure to post notice at Stanton Elementary School constituted a violation of the Open Meetings Act.
We note, however, that the Board cannot be said to have violated the Act by failing to post notice more than twenty four hours before the proposed special meeting. Mrs. Southworth complained that the posting of the notice on Friday, March 6, of a special meeting to be held on Monday, March 9, was inadequate since few people in the rural community would have occasion to visit the closed board offices. Unlike KRS 61.846(2), which specifically excludes Saturdays, Sundays, and legal holidays from time computations, KRS 61.823(4)(b) contains no such exclusion. For this reason, we believe that the Board complied with the Open Meetings Act by posting the notice well in excess of the twenty four hour minimum established by law.
Allegations 3 and 7 Relating to Special Meetings Held at Inconvenient Times
Based on the reasoning set forth at pages 5 and 6 of 98-OMD-74, we find that the Powell County Board of Education did not violate the Open Meetings Act by conducting its January 29 special meeting during a flu epidemic or its March 9 special meeting one and one-half hours before a regional basketball tournament in which the county was participating. Mr. Cunningham explained that "the meeting of January 29 was necessary because a draft budget was due in the Kentucky Department of Education by February 1," and that the draft had not been completed before the regular January meeting "due to changes in accounting technology." He characterized the Board's decision to move the 7:00 p.m. meeting time for the March 9 special meeting to 5:30 p.m. as an "accommodat[ion to] members of the board and the public who wanted to attend the basketball game. "
As we noted at page 5 of 98-OMD-74, "a public agency has some flexibility and discretion in determining what is a convenient day and time" within the meaning of KRS 61.820. Citing 96-OMD-264, p. 2. Continuing, we observed:
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.
98-OMD-74, p. 6.
As in the companion appeal, the record here suggests that the January 29 meeting was hastily arranged to insure that the Board complied with the Department of Education's January 1 filing deadline. And, as in the appeal, if the Board had had the luxury of several days to file its draft budget, "the law would have contemplated a greater attempt to accommodate" the public. 98-OMD-74. We cannot conclude on the basis of the facts presented to this office, that the January 29 meeting was held at an inconvenient time despite the fact that the county was experiencing a flu epidemic.
Nor do we believe that the Board violated the Open Meetings Act in rescheduling its March 9 meeting one and one-half hours earlier to permit board members and the public generally to attend the basketball game set for 7:00 p.m. Although there is evidence in the record that many parents, as well as employees of the school system were engaged in various activities in preparation for the game, we find no support for the claim that 5:30 was an inconvenient time. Again, we give considerable latitude to the Board in scheduling its meetings.
Allegation 1 Relating to Inaccuracies in Minutes of February 27 Meeting
Mrs. Southworth also alleged that the minutes of the Board's February 27, 1998, special meeting did not reflect actions taken after the meeting was adjourned. As we noted in 98-ORD-74, although Mr. Cunningham initially denied the existence of any such discrepancy, he has since acknowledged the Board's error, and agreed to remedy it at its next meeting. We reaffirm our decision that this portion of Mrs. Southworth's appeal is moot. "When the agency concedes error, the issue upon which that portion of the appeal is based becomes academic or moot. " 98-OMD-74, p. 8.
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.