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 City of Benton Park Board violated the Open Meetings Act over an unspecified period of time by failing to conduct regular meetings and to "provide for a schedule of regular meetings," failing to give adequate notice of its special meetings, and failing to record minutes of some of those meetings. For the reasons that follow, we find that although the failure to establish a regular meeting schedule does not constitute a violation of the Open Meetings Act, the failure to give notice and record minutes constitute violations of KRS 61.823 and KRS 61.835 respectively.
On August 18, 1999, Norbert J. and Rose Mary Mueller submitted a written complaint to Mayor Jim Wiseman and Park Board Chairman Willis McKendree. In their complaint, the Muellers alleged that the Park Board's failure to comply with the Open Meetings Act "resulted in illegal votes, restrictions, rules and improper authorization of expenditures of public money in the management of public buildings and property and possible conflicts of interest." As a means of remedying these violations of the Act, the Muellers proposed, inter alia , that the Park Board rescind any actions taken at the illegal meetings, and furnish them with copies of various financial records relating to park facilities during the period of the illegal meetings as well as the Park Board's rules of order, by-laws, and budget, and that the Benton City Council adopt a resolution ensuring compliance with the Open Meetings Act "by all groups and persons covered by the Statute."
On August 20, 1999, Chairman McKendree responded to the Muellers' complaint. He denied that the Park Board's failure to conduct regular meetings constituted a violation of the Open Records Act, noting:
The Ordinance establishing the Benton Park Board did not establish specific times and places for its meetings. Since the Park Board does not have a designated time for its meetings, it is required under KRS 61.823 to treat all of its meetings as Special Meetings. The Park Board has held meetings during the past year and minutes for those, at which business was conducted, can be made available for your review upon receipt of a request made pursuant to the provisions of KRS 61.870.
Chairman McKendree also denied that the Park Board failed to give " any notice of the meetings which did occur" (emphasis in original), asserting that the Board "did give some notice to the public for some of its meetings." He acknowledged that the Park Board did not post notices of meetings in the community building or deliver notices to the media, but expressed the Board's intention to post notice in the Joe Creason Community Center and deliver notice to the media of all future meetings. Finally, Chairman McKendree denied that the Park Board failed to record minutes of its meetings. He conceded that no minutes were recorded of meetings at which a quorum was not present or at which no business was transacted, but maintained that minutes were recorded at Board meetings where action was taken. Chairman McKendree largely rejected the proposed remedial measures. Although he agreed to furnish the Muellers with copies of the public records identified in their "demands," upon presentation of a written open records request, he rejected their demand that the Board's actions be rescinded, and pointed out that "a request for a resolution . . . from the City Council related to compliance with the Open Meetings Law can be addressed only by the Mayor and/or the City Council." Dissatisfied with Chairman McKendree's response, the Muellers initiated this open meetings appeal.
In their letter of appeal, the Muellers argue that the Park Board has engaged in a continuing course of conduct that constitutes a violation of the Open Meeting Act, acknowledging that they do not know how many illegal meetings have occurred, who attended these meetings, and what their purpose was. In addition, they allege violations of the Open Records Act based on the Board's failure to implement the proposed open meetings remedial measure of furnishing them with copies of Board records, as well as a conflict of interest based on Chairman McKendree's exclusive use of park facilities. It is our opinion that the Park Board has violated KRS 61.820 and KRS 61.835 by failing to provide adequate notice of its meetings, and to record minutes of those meetings. We do not find that its failure to adopt a schedule of regular meetings constitutes a violation of the Open Meetings Act. We do not address the open records issue the Muellers raise inasmuch as those issues have not been presented to us in a perfected open records appeal. Nor do we address Chairman McKendree's alleged conflict of interest inasmuch as that issue is beyond the scope of the Attorney General's authority in adjudicating a dispute under KRS 61.846.
Fundamental to an analysis of the propriety of a public agency's conduct under the Open Meetings Act is the legislative statement of policy codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
In interpreting this provision, Kentucky's courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good,"
E. W. Scripps Co. v. City of Maysville, Ky.App., 750 S.W.2d 450 (1990) cited in
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), and that the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions." Id. at 923. Chairman McKendree defends the Park Board's actions by explaining that the Board gave notice of, and kept minutes at, some of its meetings. We remind the Park Board that all of the requirements of the Act apply to " all meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency," KRS 61.810, (emphasis added), including the requirements that the Board provide adequate notice of its special meetings (KRS 61.823), and that it record minutes of actions taken at those meetings (KRS 61.835). "Neither the courts, nor this office, have ever recognized the right of a public agency to selectively apply the requirements of the Act." 98-OMD-142, p. 3.
As noted, KRS 61.823 establishes requirements for conducting a special meeting which include the following:
(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. . . .
(b) As soon as possible, written notice shall also be posted in a 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 it shall be posted at least twenty-four (24) hours before the special meeting.
Chairman McKendree acknowledges that the Park Board gave notice to the public of only some of its meetings, and that the Board entirely failed to post written notices as required by KRS 61.823(4)(b). He does not indicate that notice was ever given to any media organizations that had filed written requests to be notified. These omissions constituted violations of the Open Meetings Act. In his response to the Muellers' complaint, the chairman states that the Board will post notices in the Joe Creason Community Center for all future meetings and provide written notice to the media. We urge the Board to dedicate its efforts to this goal to insure compliance with the strict letter of the law.
By the same token, we find that the Park Board's apparent failure to strictly comply with the requirements of KRS 61.835 constituted a violation of the Open Meetings Act. That statute 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.
Again, Chairman McKendree asserts that minutes were recorded at some meetings of the Park Board, specifically those at which a quorum was present or business was transacted. It is the opinion of this office that the Park Board was obligated to record minutes of all meetings of a quorum of its members at which public business was discussed or action taken. As we have noted on more than one occasion, "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; 99-OMD-117. The requirement that the agency record minutes of its meetings is triggered regardless of whether action is taken at a meeting. At a minimum, the minutes should reflect that the meeting was convened, the minutes of the last meeting approved, and the meeting adjourned. In the interest of maximizing notice of public agency meetings, and what transpired at those meetings, the Benton Park Board must record minutes of all of its meetings.
We do not find that the Park Board's failure to establish a regular schedule of meetings constitutes a violation of KRS 61.820, which 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.
We are unable to locate any legal authority addressing this issue, and acknowledge that the language of the statute is subject to conflicting interpretations. One of these interpretations comports with the Muellers' view that the Board must conduct regular meetings, and establish a schedule of those meetings which is made available to the public. In our view, however, the phrase "or by whatever other means may be required for the conduct of business of that public agency" invests the Board with some latitude in determining whether to meet on a regular or as needed basis. In the latter case, the Board must treat all of its meetings as special meetings and scrupulously comply with the notice requirements set forth at KRS 61.823. This, again, would promote the express purpose for which the Open Meetings Law was enacted, namely, to maximize notice of public meetings, in the same manner as a regular schedule of meetings, and at the same time eliminate the needless expenditure of public resources for unnecessary meetings. Moreover, it reflects the simply reality that some public agencies do not conduct the public's business on a sufficiently regular basis to justify regular meetings.
While we continue to ascribe to the view that the Open Meetings Act contemplates that public agencies will establish a regular meting schedule "by ordinance, order, resolution, [or] bylaw," and that this method of conducting meetings is clearly favored, we conclude that the Park Board's failure to do so does not violate the Open Meetings Law so long as the Board strictly complies with the requirements of KRS 61.823, treating all of its meetings as special meetings.
With respect to the other issues in this appeal, the Muellers also complain that the Park Board violated the Open Records Act by failing to furnish them with various Board records identified in the proposed remedies to their open meetings complaint. We decline to render a decision in this matter, the question having not been presented to us in a perfected open records appeal. KRS 61.872 speaks generally to the mandate of the Open Records Act. Subsection (2) of that statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
This statute is intended to insure an applicant's access to nonexempt public records upon presentation of a proper open records request. As we noted at page 10 of 97-ORD-31, "The statute does not envision an 'Open Records request . . . coincident with steps in a remedy . . . proposed in an Open Meetings action.'" Chairman McKendree did not treat the Muellers' proposed remedy to their open meetings complaint as an open records request. He has, however, agreed to furnish them with copies of the records identified in their proposed remedy upon presentation of a proper open records request. If, however, Chairman McKendree denies any portion of such a request, the Muellers may initiate a separate open records appeal which conforms to the requirements of KRS 61.880(2)(a).
We also decline to render a decision on the issue of the alleged conflict of interest arising from Chairman McKendree's use of park facilities. KRS 61.846(2) establishes the duties of the Attorney General in adjudicating a dispute under the Open Meetings Act. Pursuant to that statute, the Attorney General is charged with the duty to "review the complaint and denial and issue within 10 (ten) days, excepting Saturdays, Sunday, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." Conflict of interest questions are clearly beyond the scope of this office's authority under KRS 61.846(2).
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.