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 Hardin County Planning and Development Commission violated the Open Meetings Act at its December 10, 1996, regular meeting during the course of which a proposed map amendment was approved to permit a two lot mobile home park on property previously zoned as rural residential. In a complaint mailed on July 14, 1998, to Hardin County Judge/Executive Glen Dalton, Georgia Williams alleged that although she was notified of an earlier meeting at which a vote on the map amendment ended in a tie, the Commission failed to notify her of the December 10 meeting at which a second vote was taken and the amendment was approved. As a proposed remedy, Ms. Williams asked that "the council disciss [sic] at a future meeting, in an open and public session, the matter of the second vote taken on December 10, 1996," and that the vote be declared null and void. It is the opinion of this office that although its handling of this matter did not conform to the procedural requirements of the Open Meetings Act found at KRS 61.846, the Hardin County Planning and Development Commission did not violate the Act by failing to send Ms. Williams individual notice of its December 10 meeting.
In a response dated July 21, Mr. Hunsinger explained to Ms. Williams that pursuant to the Hardin County Land Use Ordinance a tie vote of the Planning Commission is subject to further consideration for a period of up to 30 days, and that "there is no required notification to neighbors for the resolution of a tie vote following a public hearing." In a follow-up response dated July 29, Hardin County Attorney Ken M. Howard reiterated that "all actions of the Hardin County Planning and Development Commission were taken at regularly scheduled meeting [sic] of the Commission in compliance with KRS Chapter 61." In closing, Mr. Howard noted that Ms. Williams "does not complain that the meeting itself violates Kentucky Open Meetings Laws," but instead objects to the outcome of the "duly called meeting."
We begin by noting certain procedural irregularities in the Planning Commission's response. KRS 61.846(1) establishes the duties of a public agency in responding to an open meetings complaint. That statute provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
The Planning Commission's response to Ms. Williams's complaint was issued on the fourth day following receipt of the complaint rather than on the third day as the law requires. This violation is, in our view, mitigated by Ms. Williams's failure to address her complaint to the Commission's presiding officer, Mr. Hunsinger, and the unavoidable delays which this error occasioned. We do, however, find that in denying Ms. Williams's requirements for remedying the alleged violation, the Commission did not include the requisite statement of the Open Meetings statute supporting its position or explain how the statute applies. In responding to future open meetings complaints, the Commission should be guided by KRS 61.846(1).
Turning to the substantive issues in this appeal, we find that the Planning Commission's failure to provide individual notice of its December 10 meeting to Ms. Williams did not violate the Open Meetings Act. The rules governing proper notice of public meetings are clearly set forth at KRS 61.820 and KRS 61.823. With respect to regular meetings, KRS 61.820 provides:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency . The schedule of regular meetings shall be made available to the public.
All other meetings of a public agency are special meetings subject to the notice provisions found at KRS 61.823(3) and (4) which provide:
(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
(4)(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(b) As soon as possible, written notice shall also be posted in 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. The notice shall be calculated so that is shall be posted at least twenty-four (24) hours before the special meeting.
In construing these provision, the Attorney General has observed:
There are only two kinds of meetings--regular meetings and special meetings.
Regular meetings are held at specified times and places which are convenient to the public. Public agencies must provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that particular agency.
Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)(a), there are also posting requirements (KRS 61.823(4)(b)). These requirements must be met each time for each called special meeting.
94-OMD-50, p. 3. Thus, although "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," there is no requirement in the Open Meetings Act that a public agency provide individual notice of its regular or special meetings, or to persons effected by the actions to be taken at those meetings or persons with a particular interest in the subject of the meetings. 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 (19 90).
Mr. Hunsinger and Mr. Howard state that the December 10 meeting at which the map amendment was approved was a regular meeting of the Planning Commission. Thus, the Commission was not obligated to provide written notice to its members and to media organizations whichad filed a request to receive notice, or to post written notice in a conspicuous place in the building where the meeting was to take place and in the building which houses its headquarters, much less to provide individual notice to Ms. Williams and other property owners affected by the map amendment. The Commission meets on the second and fourth Tuesday of each month, and a schedule of these meetings is available to the public. The Open Meetings Act does not require more. We therefore find that the Hardin County Planning and Development Commission did not violate the Open Meetings Act at its December 10, 1996, meeting.
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.