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 Dewitt Water District violated the provisions of KRS 61.805 to 61.850 at a special meeting held on May 14, 1999. For the reasons that follow, we find that the record is insufficient to support the claim that a violation occurred at the May 14 meeting.
On August 5, 1999, Glen D. Mills submitted a complaint to Knox County Judge/Executive Gerald West in which he alleged that the Dewitt Water District violated the Open Meetings Act at its May 14 special meeting by improperly voting to merge the district with the East Knox Water District. Mr. Mills stated that "from the audience, all East Knox District Water Commissioners 'happened' to be present, came the Chairman of the East Knox Water district along with Chairman Shackelford [sic] to sign a pretyped merger agreement. " In addition, he complained about numerous unsuccessful attempts to obtain a copy of the merger agreement from the East Knox Water District and its attorney, Skip Hammons, noting:
The minutes of the Dewitt Water District have not been timely and properly maintained by the employee of East Knox responsible for this official work duty. This failure of job responsibility denied the public access to the merger agreement.
As a means of remedying these alleged violations, Mr. Mills proposed that he be furnished a copy of the merger agreement, that disciplinary action be taken against the East Knox Water District employee "for JOB PERFORMANCE failure to properly maintain and make available to the public records of the Dewitt Water District," and that the chairman and commissioners of the Dewitt Water District be immediately removed.
In a response dated August 18, 1999, Judge West advised Mr. Mills that "the records in question are properly held by the East-Knox Water District," and referred him to that agency to obtain the records. He indicated that he would attempt to facilitate access to the merger agreement through the agency's attorney, Ms. Hammons. Dissatisfied with this response, Mr. Mills initiated an open meetings appeal, asserting that the May 14 special meeting was "a 'greased, ' 'rigged, ' or 'rubber stamped' affair." In support, he noted that the merger decision "had been made previously[,] ? the process took about 2 to 3 minutes ...[, and] the minutes of the special meeting are not accurate ..." because they do not contain a copy of the merger agreement.
It is the opinion of this office that Mr. Mills presents insufficient evidence to support a claim that a violation of the Open Meetings Act occurred at the May 14 meeting. Mr. Mills does not allege that the Dewitt Water District failed to give adequate notice of the meeting, as required by KRS 61.823(2), (3), and (4)(a) and (b). In a supplemental response addressed to this office, Dewitt Water District Chairman Richard Shackleford asserts that notice was given to both the local radio station and newspaper. Mr. Mills does not allege that the District conducted an improper closed session in contravention of KRS 61.815, that persons were excluded from, or unable to observe, the meeting in contravention of KRS 61.840, or that minutes were not recorded in contravention of KRS 61.835. His complaint that the outcome of the meeting was "greased, " "rigged, " or "rubber stamped" is not cognizable under the Open Meetings Act insofar as it does not state a violation of "the provisions of KRS 61.805 to 61.850."
Nor does his complaint that the minutes of the meeting were improperly maintained state a violation. KRS 61.835 establishes minimum requirements for the maintenance of minutes of meetings of public agencies. 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.
The Open Meetings Act does not require that records reflecting final action taken, such as the merger agreement, be appended to the minutes. Again, Mr. Mills fails to state a justiciable claim under the Act.
In closing, we note that Mr. Mills's complaint was defective to the extent that he failed to submit it to the proper party. KRS 61.846(1) states that a person who wishes to enforce the provisions of KRS 61.805 to 61.850 "shall submit a written complaint to the presiding officer of the public agency suspected of the violation." In the case of an alleged violation of the Open Meetings Act by the Dewitt Water District, the person to whom the complaint should have been directed was Chairman Shackleford, and not Knox County Judge-Executive Gerald West. Mr. Mills should bear these observations in mind in formulating future open meetings complaints.
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.