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 Bell County School System violated the Open Meetings Act when it failed to give notice of the December 14, 1998, meeting of its Local Facility Planning Committee, and again when the same committee reconvened its January 11, 1999, meeting in the Bell County High School library after a break from the public hearing held in the high school auditorium. For the reasons that follow, we conclude that in both instances the committee's actions constituted violations of the Open Meetings Act.
On June 15, 1999, Daryle Wilder submitted a written complaint to Bell County Superintendent Yvonne Gilliam in which he alleged that the Bell County School System's Local School Facility Planning Committee violated the Open Meetings Act by failing to advertise its December 14 meeting, and by effectively excluding the 250 to 300 people who attended its January 11, 1999, public hearing in the high school auditorium from the second portion of the meeting, which was held in the high school library, and which accommodated only 40 to 75 people. Mr. Wilder proposed that the committee remedy these violations by "starting the process over . . . to allow public involvement and input." Having received no response to his complaint, Mr. Wilder initiated this open meetings appeal on July 1, 1999.
Upon receipt of this office's notification of Mr. Wilder's open meetings appeal, Superintendent Gilliam issued a response in which she defended the committee's actions, and rejected Mr. Wilder's proposed remedy. Superintendent Gilliam explained:
The purpose of the [December 14] meeting was to determine if the committee was receptive to amend the Master Facility Plan. . . . The committee agreed to consider an amendment and approved a draft amendment as a starting point. This meeting was not advertised in local papers.
Superintendent Gilliam characterized the meeting as "an organizational committee meeting," emphasizing that "NO FINAL BUSINESS was conducted." (Emphasis in original.)
In defense of the committee's actions at its January 11 meeting, Superintendent Gilliam stated:
The public was heard in the auditorium of Bell County High School until there were no additional comments, approximately three hours. It was announced that we would break for about fifteen minutes and reconvene upstairs in the library in order for the committee to gather around tables, review materials, folders, and handouts, and discuss issues and concerns submitted during the public forum. The committee hearing was open to the public.
Superintendent Gilliam maintained that the January 11 meeting was properly advertised, and that "there was ample seating for the public at all times." She indicated that at no time did the committee enter into a closed session, noting that the high school was selected as the meeting site because it was the largest available facility and could accommodate the greatest number of people. With respect to both the December 14 and January 11 meetings, Superintendent Gilliam asserted that " All actions have been reviewed by our local board attorney, Mike Bowling, . . . scrutinized in depth by the Kentucky Board of Education[,] . . . [and] approved at all levels." (Emphasis in original.) Accordingly, Superintendent Gilliam concluded, there was no legitimate basis for Mr. Wilder's complaint. We do not agree.
We begin by noting certain procedural irregularities in the committee's handling of Mr. Wilder's complaint. KRS 61.846(1) establishes the duties of a public agency in responding to an open meetings complaint. That statute provides that within three business days of receipt of the complaint, a public agency must determine whether to acknowledge the violation and implement the remedial measures proposed by the complainant, and notify the complainant, in writing, of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. Neither Superintendent Gilliam, nor any other person acting on behalf of the Local Facility Planning Committee, issued a response of any kind. The committee's failure to respond in writing, and within three business days, constituted a violation of the Open Meetings Act. We remind the Bell County School System, as well as the committee, that the procedural requirements of the Open Meetings Act, "are not mere formalities, but are an essential part of the prompt and orderly processing" of an open meetings complaint. 98-OMD-32, p. 2, 3. We urge the school system and the committee to review the cited provision to insure that future responses conform to the requirements of the Act.
In a recent open meetings decision, this office observed:
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[.]"
98-OMD-74, p. 3. Guided by these principles, we conclude that the committee engaged in conduct which constituted substantive violations of the Open Meetings Act at its December 14 and January 11 meetings.
KRS 61.810(1) provides that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times. . . ." A meeting is defined as "all gatherings of any kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meetings." KRS 61.805(1). "The express purpose of the Open Meetings Act, " the Kentucky Supreme Court has observed, "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). Accordingly, the Court concluded, public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny," Id. at 924, since "this is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency."
Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987).
We reject the committee's argument that its December 14 meeting was an organizational meeting at which no final action was taken, and thus not subject to the requirements of the Open Meetings Act. At page 3 of 94-OMD-50, the Attorney General held:
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.
The Open Meetings Law does not recognize an "organizational meeting" as a gathering of public officials with unique legal attributes which remove it from the requirements of the law. It is, instead, a special meeting which is governed by KRS 61.823. The fact that no final action was taken at the December 14 meeting has no bearing on our analysis. KRS 61.810(1) requires that any meeting at which public business is discussed or action is taken must be open to the public. In construing this provision, the Attorney General has observed, "We attach significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.' 98-OMD-94, p. 5; see also 99-OMD-77. On those occasions when a quorum of the members of the public agency are present and public business is discussed, the agency violates the Open Meetings Act by failing to notify the public about the meeting, and by excluding the public from the meeting, notwithstanding the fact that no final action is taken. The December 14, 1998, meeting of the Local Facility Planning Committee was a special meeting, subject to the requirements of the Open Meetings Act, and the committee's failure to give proper notice of the meetings and admit the public to the meeting, constituted a violation of the Act.
The committee committed an equally serious violation of the Open Meetings Act at its January 11, 1999, meeting during the course of which the meeting site was relocated. Although the committee appears to have complied in all material respects with the requirements of KRS 61.840 in conducting the public hearing portion of that meeting in the Bell County High School auditorium (which could accommodate the 250 to 300 attendees) , it violated this provision when it reconvened for the second portion of the meeting in the school's library (which accommodated only 40 to 75 people).
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.
Although the high school auditorium in which the public hearing portion of the January 11 meeting was held easily accommodated the 250 to 300 people in attendance, and the decision to hold the meeting in the auditorium was thus entirely consistent with KRS 61.840, the committee's decision to reconvene, after a break, in the school's library violated KRS 61.840. Superintendent Gilliam does not dispute Mr. Wilder's assertion that upwards of 300 attendees were present at the meeting, or that the library in which the committee reconvened accommodated a maximum of 70 people. Although she indicates that the public was invited to attend the second portion of the meeting, she does not explain how 250 to 300 people could effectively observe the public meeting in a room which would accommodate less than one-third of the individuals in attendance. The public would have been better served by a decision to remain in the auditorium, and make the necessary arrangements to permit "the committee to gather around tables, review materials, folders and handouts, and discuss issues and concerns submitted during the public forum" in the meeting room which allowed effective public observation. The Local Facility Planning Committee's failure to do so constituted a violation of the Open Meetings Act.
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.