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 Trimble County Fiscal Court violated the Open Meetings Act by failing to comply with the notice requirements set forth in KRS 61.823 prior to its August 12, 1999, special meeting. Based on the written record before us we cannot conclude, as a matter of law, that the Fiscal Court violated KRS 61.823 by failing to provide written notice of the meeting to media organizations which had filed written requests to receive notice of special meetings. The issues before us are factual, and not legal, in nature, and therefore cannot be resolved by this office in an open meetings appeal.
On August 31, 1999, K. Penney Sanders submitted a complaint to the presiding officer of the Trimble County Fiscal Court, County Judge/Executive Ray Clem. Ms. Sanders complained that the Fiscal Court failed to give adequate notice of its August 12 special meeting, noting that "no citizens received notice of this meeting, nor was notice provided to the paper." As a means of remedying this violation, Ms. Sanders proposed that the Fiscal Court "provide to [her], as per the statute, that the Kentucky Open Meetings laws were complied with in regard to the August 12th, 1999 Fiscal Court Meeting."
In a letter dated September 2, 1999, Trimble County Attorney Perry R. Arnold responded to Ms. Sanders's complaint, assuring her that "there was no intention in this instance to exclude the public." He explained:
The statutes require that each member of the governing body and the press receive notice of the meeting and that was done. . . . I personally prepared the notice for publication and took it to Judge Clem's office. I have recently checked and Judge Clem's office sent the notice by facsimile transmission to the Trimble Banner . It would appear that the newspaper, for whatever reason, failed to publish the notice.
In a separate letter addressed to another concerned citizen of Trimble County, Judge Clem himself advised:
Notice of the hearing was sent on July 27, 1999, to the Trimble Banner for publication in the August 4, 1999, Trimble Banner . Realizing that the public hearing was scheduled for August 12, 1999, at 6:30 p.m., I thought that should be sufficient notice for public opinion.
Needless to say, the notice was not published due to an error by the local paper. I apologize that the error was made, however, I am not the editor of the Banner and have no latitude over their operations. I, in good faith, made an effort to get that information to both the Banner and the Madison Courier and did indeed get the information to both.
Rejecting "the well-intentioned excuses offered by both the County Judge Executive and the County Attorney," Ms. Sanders initiated this open meetings appeal.
The Kentucky Court of Appeals has recognized that "the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. "
E. W. Scripps Company v. City of Louisville, Ky.App., 790 S.W.2d 450, 452 (1990). Echoing this view, the Kentucky Supreme Court has confirmed:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strictly 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), citing E. W. Scripps Co. , above. "Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to 'open government openly arrived at.'" 99-OMD-146, p. 4, citing
Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N. J. Super. Ch. 1982).
To promote this goal, the Open Meetings Law establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. KRS 61.823 provides, in relevant part:
1. 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
a. As soon as possible, written notice shall also be posted in a
"The language of the statute directing agency action is exact."
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed. . . ." In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting.
The Trimble County Fiscal Court acknowledges that the Open Meetings Act mandates written notice to media organizations that have requested notification. The Act permits agencies to transmit notice by facsimile machine. The Fiscal Court's legal obligations are therefore not in dispute. What is disputed is whether the notice was received by those media organizations. Both Judge Clem and County Attorney Arnold maintain that notice was transmitted by facsimile machine to the Trimble Banner Democrat on July 27, and that the Trimble Banner neglected to print it. The Trimble Banner asserts that it never received the notice, and therefore could not print it. This office has neither the ability, nor the authority, to resolve this factual dispute.
Pursuant to KRS 61.846(2), the Attorney General is required to review a complaint and response in an open meetings appeal, and to issue a written decision "which states whether the agency violated the provisions of KRS 61.805 to 61.850." Such decisions involve the application and interpretation of the requirements of the Open Meetings Act, and are in the nature of questions of law. As noted, the legal requirements of the Act are not in dispute. The question before us is whether the Trimble County Fiscal Court sent the required written notice of a special meeting to be held on August 12 to the Trimble Banner Democrat at least 24 hours before that meeting. This question involves the resolution of a factual dispute which we can not, on the written record before us, resolve.
We must, therefore, conclude that if the Trimble County Fiscal Court did not give proper notice of its August 12 special meeting, its actions constituted a violation of the Open Meetings Act. If, on the other hand, the Trimble County Fiscal Court did give proper notice, and the failure of the newspaper to receive and print that notice resulted from a facsimile transmission error, the Fiscal Court can not be said to have violated the Act. We encourage the Trimble County Fiscal Court to review KRS 61.823 to insure strict compliance with the requirements for conducting a special meeting, as well as the other requirements of the Open Meetings Act, in furtherance of the public good.
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.