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 University of Kentucky violated the Open Meetings Act in responding to John D. Sammons's June 27, 1998, complaint concerning the University Senate Council's Ad Hoc Committee on the Status of Women. For the reasons that follow, we find that although its original response constituted a partial violation of the Act, the University subsequently acknowledged this violation thereby rendering all but one of the issues which Mr. Sammons raised moot.
On June 27, 1998, Mr. Sammons submitted a written complaint to Joan Callahan, presiding officer of the University Senate's Committee on the Status of Women, in which he raised a number of questions pertaining to the Committee's compliance with the Open Meetings Act. Specifically, he questioned whether a notice electronically posted on the University Senate's web site satisfies the posting requirement set forth at KRS 61.823(4)(b), whether the agenda which must appear in that notice pursuant to KRS 61.823(3) may properly omit topics scheduled for discussion only, whether the minutes of actions taken, which the Committee is required to maintain pursuant to KRS 61.835, must include the names of the individuals appointed to a subcommittee by the Committee in addition to the act of appointment, and whether the minutes must include topics discussed but not acted upon by the Committee.
On the issue of the position of notice, Ms. Callahan took the position that the Committee satisfied its obligation under the Open Meetings Law by announcing each special meeting in advance by electronic notice posted on the University Senate web site "which can be reached on the Internet by any interested citizen." As for the content of the agenda, she maintained that because the University Senate has given the Committee three general charges, and those charges appear on the web site, the agenda may properly omit topics scheduled for discussion only. "Committee discussions at any particular meeting," she explained, "would be one of, or combination of, topics under these three charges." In response to Mr. Sammons's inquiry about the minutes of Committee meetings, Ms. Callahan attributed the omission from the minutes of the names of individuals appointed to a subcommittee to "the sensitive policy matter to which we charged the committee," asserting that since the appointments could have been made in a closed session in any event "the spirit of the Open Meetings law [was] met." Finally, Ms. Callahan defended the Committee's failure to include topics scheduled for discussion only in the minutes of its meetings on the grounds that the Open Meetings Act requires it to keep a record of "action[s] taken," but not of topics discussed. Dissatisfied with these responses, Mr. Sammons initiated this open meetings appeal.
In a follow-up letter to this office dated July 20, 1998, Paul C. VanBooven, Deputy General Counsel for the University, acknowledged several errors in Ms. Callahan's response. With respect to the issue of the posting of notice of special meetings, he conceded that electronic posting on the University Senate's web site "does not meet the statutory requirement set out in KRS 61.823 for written notice of special meetings." Similarly, Mr. VanBooven acknowledged that pursuant to KRS 61.823(3) all topics to be discussed at a special meeting must be identified in the notice agenda, and discussions and actions at that meeting are strictly limited to the listed topics. On the issue of the content of the minutes of the Committee's meetings, he retreated from the position Ms. Callahan had taken, recognizing that "it would be improper to omit from the meeting minutes the names of persons appointed to a subcommittee of the CSW, if in fact the CSW took action to appoint the members." Noting that in certain limited circumstances the Committee could go into closed session, Mr. VanBooven nevertheless acknowledged that "if the CSW takes action on the appointment of members of a subcommittee, the action must be taken in open session and recorded in the minutes. " Relying on this office's decision in 98-OMD-74, Mr. VanBooven argued that each of these three issues was rendered moot by the University's admission of error.
The only remaining issue, in Mr. VanBooven's view, was whether the Committee's minutes must include topics that were discussed but upon which no action was taken. Like Ms. Callahan, he asserted that "KRS 61.835 requires only that minutes of actions taken be recorded. " We agree in full with Mr. VanBooven's assessment of all of the issues raised in Mr. Sammons's open meetings appeal.
With respect to those issues upon which the University concedes error, we agree that 98-OMD-74 is controlling. At page 8 of that decision, the Attorney General opined:
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 provides 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.
Mr. VanBooven correctly interprets KRS 61.823 and KRS 61.835 relative to the content and posting of written notice and the content of meeting minutes. We see no need for further discussion of these issues.
Turning to the only remaining issue in dispute, we find that the Committee on the Status of Women did not violate the Open Meetings Act by failing to record in the minutes of its meetings topics designated for discussion only and upon which no action was taken. KRS 61.835 expressly provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
In construing this provision, the Attorney General has observed:
The minimum statutory requirement for minutes is, therefore, that they record formal motions made in a meeting and the vote of the members on the motion. Anything more than such a record is a matter of parliamentary procedure and the discretion of the public body.
OAG 81-387, p. 2. Although the minutes of the meeting may contain more than the minimum statutory requirement, they may not contain less. To the extent that the minutes of Committee meetings contain "an accurate record of votes and actions at such meetings," those minutes conform to the requirements of the law.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(A). 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.