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 Oldham County Board of Education violated the Open Meetings Act by failing to comply with the requirements of the Act at its July 26, 1999, meeting. For the reasons that follow, we conclude that although insufficient evidence exists to support the complainant's position that the Board violated the Open Meetings Act, the Board should nevertheless exercise greater caution in discharging its duties under the Act.
On July 29, 1999, Oldham County Board of Education member Heidi P. Glascock submitted a written complaint to Linda Theiss, Chairman of the Board, in which she alleged that the Board violated the Open Meetings Act when its July 26 meeting, which had been scheduled to begin at 6:00 p.m., was called to order at 4:00 p.m. Ms. Glascock asserted that "holding the board meeting at the incorrect time stated on the agenda may be in violation of KRS 61.820, and perhaps even KRS 61.823[, and] switching the times of the meeting back and forth calls for special notification. . . ." She proposed that the Board remedy this violation by furnishing her with "briefings" or minutes of the meeting, and calling a special meeting, "in a timely fashion . . . to properly conduct the executive session, or possibly the meeting in its entirety, . . . intended for last Monday."
On August 4, 1999, Ms. Theiss responded to Ms. Glascock's complaint. She explained that there was:
an unintentional error made on the agenda indicating the start time for the July 26th regular meeting as 6:00 p.m. when the agenda should have indicated our adopted starting time of 4:00 p.m. The Board never changed the scheduled meeting time of the July 26 meeting (see KRS 61.820 and OAG 92-OMD-1677). All regular meetings are scheduled to begin at 4:00 p.m. (see attached schedule of board meetings) and the meeting was called to order at approximately 4:00 p.m. in accordance with the adopted schedule.
. . .
The Superintendent indicates he intends to share his executive session notes and the draft minutes of the regular meeting in the August midmeeting agenda. I believe the executive session updates, such as there were, can be provided again at the August meeting. There were no actions taken as a result of the executive session. I see no need for a special called meeting as the conduct of the regular meeting was in compliance with the law. If the board had called the July 26th meeting to order at any time other than 4:00 p.m. (the adopted scheduled time of regular meetings), only then would there have been a violation of KRS 61.823. The board has taken no action to amend the adopted schedule of regular meetings that was distributed to the public in accordance with KRS 61.820.
Ms. Theiss emphasized that attempts were made to telephone Ms. Glascock shortly after the July 26 meeting was convened, and the agenda error noted, but that "there was no indication given that [Ms. Glascock] objected or wanted the Board to wait. . . ." Dissatisfied with the Board's response, Ms. Glascock initiated this open meetings appeal.
Attached to Ms. Glascock's letter of appeal are copies of the cover page to the agenda of the July 26 meeting, indicating that the meeting was scheduled to commence at 6:00 p.m. in Room 105 of the Administration Building, and a draft agenda, dated July 12, 1999, from Superintendent Blake Haselton to Ms. Theiss, Ms. Glascock, and other members of the Board. Item 1.A. of that memorandum reads as follows:
Executive Session - No updates at this time. In the event we have no significant updates, my recommendation will be to not have executive session in July and start the meeting at 6:00 p.m.
In addition, she attached a copy of the 1999/2000 Oldham County Board of Education Schedule of Board Meetings which states:
All Board Meetings Begin at 4:00 p.m. (unless otherwise noted)
Public Session Will Begin at 6:00 p.m.
Ms. Glascock offered these documents to support her argument that the meeting had been scheduled for 6:00 p.m., and subsequently rescheduled back to 4:00 p.m.
Following receipt of this office's notification of open meetings appeal, Ms. Theiss elaborated on the Oldham County Board of Education's position.
Our interpretation of KRS 61.820 is that the Oldham County Board of Education, by action of the Board on June 28, 1999, adopted the schedule of meetings including the July 26, 1999 meeting at 4:00 p.m. The superintendent does not have the authority, by statute or board policy, to change the approved meeting schedule. The Superintendent did not recommend a change in times and no board action took place to amend the meeting time. Had the board done so, the meeting would have been subject to the provisions of KRS 61.823 (special meetings).
There are no regularly scheduled Oldham County Board of Education meetings in 1999/2000 that do not begin at 4:00 p.m. as listed on the schedule of meetings adopted by the Board on June 28, 1999 and as required by KRS 61.820. The "public" portion of our regular meetings have taken place at 6:00 p.m. Although the public is welcome to attend the meeting at the 4:00 p.m. start time, rarely do they with the exception of parents and staff interested in school tours.
The 6:00 p.m. starting time on the July 26, 1999 Board agenda was listed inadvertently. The agenda should have read 4:00 p.m. KRS 61.820 (Schedule of Regular Meetings) mentions schedules and clearly the Board adopted a schedule of meetings on June 28, 1999, and made the schedule available to the public. There is no mention in KRS 61.820 regarding agendas for meetings or changes in agendas. Further, times listed on agendas are not compliance requirements. However, note that four other board members and support staff were present for the 4:00 p.m. start time. There was no indication that Ms. Glascock objected to the meeting starting prior to her arrival at 6:00 p.m. start time. In fact, she first indicated she would join the Board for Executive Session at approximately 5:00 p.m., then called to indicate she would not be arriving until 6:00 p.m. but to "take good notes". Neither I, the Superintendent, or other board members interpreted this to mean that she objected to the meeting starting without her. At no time I can recall did Ms. Glascock ask for either explanation or a delay in the meeting. Further, no actions resulted from the Executive Session she missed.
In closing, Ms. Theiss noted that neither she nor the Superintendent could recall Ms. Glascock's request for notes or minutes of the executive session prior to her July 29 complaint, that no minutes are kept during executive session, and that she could "find no reference to this concern in the statutes related to Open Meetings."
It is the opinion of this office that the record contains insufficient evidence to support Ms. Glascock's position that the Oldham County Board of Education rescheduled its July 26 regular meeting when it issued an agenda stating that the meeting would begin at 6:00 p.m., thus triggering the posting and notice requirements of KRS 61.823. On more than one occasion, the Attorney General has observed:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of or in place of the regular schedule of meetings that meeting is a special meeting and the provisions of KRS 61.823 must be followed.
The public has the right to expect a public agency such as a school board to follow its regular meeting schedule or to call special meetings following the required notice, delivery, and posting provisions pursuant to KRS 61.823. When the public agency deviates from its regular meeting schedule and reschedules that regular meeting the rescheduled meeting becomes a special meeting. See 92-OMD-1473, at page two.
92-OMD-1677, p. 2, 3; 92-OMD-1473. Although it can be argued that the Oldham County Board of Education deviated from its regular meeting schedule when it issued an agenda stating that the 4:00 meeting time had been moved to 6:00, we find little evidence to support a claim that this was the conscious intent of the Board.
As Ms. Theiss correctly notes, KRS 61.820 requires public agencies to adopt a schedule of regular meetings, and to make that schedule available to the public. This, the Oldham County Board of Education has done. As 92-OMD-1677 and 92-OMD-1473 demonstrate, any conscious attempt to deviate from the regular schedule of meetings triggers the requirements of KRS 61.823 relative to notice and posting of a special meeting. Nevertheless, a special meeting can only be called by the presiding officer, here Ms. Theiss, or a majority of the members of the agency, here the Board members. Moreover, the Open Meetings Act does not require public agencies to prepare an agenda for its regular meetings. Although, as we will subsequently discuss, great care should be exercised in preparing an agenda, whether voluntarily or compulsorily, the time which appears on a regular meeting agenda is not, as Ms. Theiss also correctly notes, a "compliance requirement."
In the absence of evidence to support a claim that the July 26 meeting was called by Ms. Theiss, or a majority of the Board members, as a special meeting, we must conclude that no violation occurred. The error that appeared on the July 26 agenda was apparently clerical in nature, and did not represent a conscious attempt to call a special meeting, or to exclude Ms. Glascock, or the public generally, from the meeting.
The reasons for Ms. Glascock's confusion are apparent. She relied on the recommendations made by Superintendent Haselton in his July 12 memorandum that the July meeting begin at 6:00 p.m. rather than 4:00 p.m., and the agenda she received which indicated that the meeting would begin at 6:00 p.m. Nevertheless, given the fact that the superintendent lacked authority to change the meeting time, or call a special meeting, and that the agenda itself did not identify the meeting as a special meeting called by the board chairman or a majority of the board members, we believe her reliance was misplaced. In our view, an apparent typographical error by a member of the Board's staff cannot be imputed to the Board as an intentional violation of the Open Meetings Act.
We remind the Oldham County Board of Education that in a recent decision, the Kentucky Supreme Court recognized:
The express purpose of the Open Meetings Act 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. See E.W. Scripps co. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990).
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). It is imperative that the Board exercise an abundance of caution to insure that any documents circulated to its members, or the public generally, accurately reflect the date, time, and place of its meetings, and the matters to be discussed. Although the record before us does not support a claim that the Board intentionally excluded Ms. Glascock, or the public generally, from its July 26 meeting by issuing false or misleading information as to the meeting's starting time, should the same problem recur in the future we believe such a case could be made. We therefore urge the Board to rededicate its efforts to insuring strict compliance with the requirements of the Open Meetings Act by sedulously reviewing any written materials relating to its meetings.
In closing, we note that the Board's policy of conducting its executive sessions prior to the "public session" of its regular meetings raises open meetings concerns that are, in our view, more serious than its apparently lackadaisical proofreading practices. The Board's published 1999/2000 Schedule of Board Meetings indicates that "All Board Meetings Begin at 4:00 p.m. (unless otherwise noted) - Public Session Will Begin at 6:00 p.m." It is apparently the Board's standard practice to convene at 4:00 p.m. for executive session, and to conduct its open session at 6:00 p.m. Although Ms. Theiss states that "the public is welcome to attend the meeting at the 4:00 p.m. start time," the published schedule of Board meetings does not make this clear. She acknowledges that parents and staff "rarely" exercise the right to attend the 4:00 meeting.
The Open Meetings Law mandates that the Board convene its public session at a designated hour, and then proceed to an executive session where appropriate. KRS 61.815 provides that as a condition for conducting closed sessions authorized by KRS 61.810:
a. Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
In construing this provision, the Kentucky Supreme Court has observed:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting.
Floyd County Board of Education v. Ratliff , at 924. KRS 61.815 is thus also aimed at promoting the "express purpose" of the Open Meetings Act, namely, "to maximize notice of public meetings and actions." Id. at 923; see also, 94-OMD-78 (holding that agencies which are not exempt per se from the requirements of the Open Meetings Act must observe these formalities before going into a closed session) ; 95-OMD-92 (holding that KRS 61.815 "clearly require[s] that certain things be done in a regular, open, and public session before the public agency can go into a closed or executive session) .
It is only by complying with the requirements of KRS 61.815 in an open "public session" that the public can meaningful assess the propriety of Board's decision to go into closed session. It is not enough to state, in the agenda, that the Board will "consider executive session on Personnel (KRS 61.810[(1)](f), Real Estate (KRS 61.810[(c)](b) and Litigation (KRS 61.810[(1)] (c)) Matters." Each of these exceptions, along with the remaining nine exceptions, require a particular showing relative to their proper invocation. We urge the Oldham County Board of Education to review the cited provisions, and to reevaluate its current practice of conducting a "public session" separate and apart from its "executive session. "
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.