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 Ohio County Fiscal Court violated the Open Meetings Act by failing to hold its September 30, 1998, special meeting in a room which permitted effective public observation. For the reasons that follow, we find that the record does not support Mr. Phelps's position that the meeting room did not accommodate all persons who wished to observe the meeting.
The record reflects that on September 30 a special meeting of the Ohio County Fiscal Court was convened in the 911 office of the Ohio County Courthouse to discuss payment of bills and claims and to give first reading of an ordinance setting the 1998 tax rates. The record further reflects that the fiscal court normally conducted its meetings in the Ohio County Community Center. It is the fiscal court's position that the meeting was held in the 911 office because the only issues to be discussed were payment of bills and claims and the tax ordinance, and because the room was adjacent to the treasurer's and finance officer's offices. On behalf of the fiscal court, Ohio County Attorney E. Glenn Miller noted that "the meeting was held at that place in the event it was necessary to have access to any of the books and records within the office of the treasurer or the office of the finance officer when the tax ordinance was under consideration by the Court." "Had it been necessary to refer to any of the books and records," he explained, "the Court would have had to adjourn the meeting until those records could have been retrieved from the Courthouse and delivered to the meeting." In response to Mr. Phelps's allegation that a group of citizens who had come to attend the meeting were unable to gain access to the room, Mr. Miller noted that "those people were looking for a meeting [which had been held the previous night,] and were not looking for the meeting of the Fiscal Court." Having learned that they had missed their meeting, this group of citizens left. By Mr. Miller's calculations, only he and the Ohio County Sheriff stood outside the meeting room for the duration of the meeting, and this was by choice.
The Attorney General has, on more than 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, for example, 97-OMD-28; 98-OMD-74. These decisions were premised on KRS 61.820, which 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," and KRS 61.840 which imposes a corollary duty on public agencies to "provide meeting room conditions which insofar as is feasible allow effective public observation of the public meeting." In 97-OMD-28, 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 the 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; compare 94-OMD-87 (holding that where the meeting is held in a room which would normally accommodate all those desiring to attend, and the public agency makes arrangements to permit the overflow crowd to view the meeting from another room by means of television monitors, the agency fully complies with the law); 98-OMD-44 (holding that public agency properly attempted to deal with overflow crowd by setting up a monitor in an adjoining room). These decisions are, however, distinguishable from the appeal before us.
The record on appeal does not support Mr. Phelps's claim that a group of individuals was excluded from the meeting room. Mr. Phelps apparently did not question the group to determine why they were present. Mr. Miller did. He learned that the group was present to attend a water board meeting, and had no interest in the Fiscal Court meeting. Absent any evidence to the contrary (such as a list of the individuals who were purportedly excluded), we must assume the truthfulness of Mr. Miller's statements. He further asserts that the only individuals who stood in the hallway for the duration of the meeting, namely himself and the Ohio County Sheriff, did so by choice and not by necessity. Again, Mr. Phelps offers no evidence to the contrary relative to the number of persons observing from the hallway. We therefore conclude that there was no overflow crowd to be accommodated, and that the Fiscal Court was under no obligation to correct an apparently nonexistent problem.
In his letter of appeal, Mr. Phelps raises a second issue relative to the adequacy of agency notice of the September 30 special meeting which he did not raise in his original complaint. We do not believe that this issue is ripe for review by the Attorney General inasmuch as the Ohio County Fiscal Court was not given an opportunity to respond to these allegations pursuant to KRS 61.846(1). In the interest of heading off subsequent appeals, however, we refer the parties to 98-OMD-125, and in particular the discussion at pages 3 through 5, relating to proper notice of public meetings. A copy of this decision is enclosed.
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.