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 Board of Education violated provisions of the Open Meetings Act by failing to give adequate notice of its August 23, and September 7, 1999, meetings. Based on the written record before us we cannot conclude that the Board violated the notice provisions of the Open Meetings Act by failing to include the term "public" in its published notices of the meetings. Nevertheless, the record does not support the Board's claim that it fully complied with these provisions.
On September 20, 1999, Doyle Carnes submitted a complaint to Bell County Superintendent Yvonne Gilliam 1 in which he asserted that "an Open Meetings violation occurred in the advertisement of the Local Facilities Planning Committee on August 23, 1999 and again on September 7, 1999." Mr. Carnes argued that because "every meeting should be a public meeting it should be advertised as a public meeting. " In closing, Mr. Carnes noted that "advertising meetings in a manner to exclude the public seems to be a pattern of the Bell County Board of Education...." 2
In a response dated September 21, 1999, Superintendent Gilliam denied that an open meetings violation occurred at either meeting. She explained:
All meetings relative to the Local Facilities Planning Committee meetings have been properly advertised from this office. The Middlesboro Daily News ran some incorrect information relative to meetings? I have no idea where they received the incorrect information or why they made some of the mistakes they made with the correct information in hand. However, the bottom line is they correctly printed the notices we submitted and the advertisements we purchased. No advertisement of any Local Facility Planning Committee indicated the public was to be excluded? Newspaper announcements of meetings are for the purpose of informing the general public of meetings not for the purpose of excluding the public.
Dissatisfied with this response, Mr. Carnes initiated an open meetings appeal to the Attorney General.
We begin with the presumption that we are dealing with two special meetings of the Planning Committee since the notice requirements of KRS 61.823 do not come into play when the meeting is a regular one. With respect to the issue of notice, 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:
(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.
"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 Open Meetings Act does not require the term "public" to appear in the notice, although the public character of the meeting can be inferred from the appearance of the notice in the newspaper. 3 Accordingly, we conclude that the omission of the term did not constitute a violation of the Open Meetings Act.
Nevertheless, the notices do not appear to contain, nor does Superintendent Gilliam state that they contained, an agenda of the items to be discussed at the meetings, in addition to the date, time, and place of the meetings. Further, the record is devoid of evidence that the notices were posted in a conspicuous place in the building where the meetings took place, or in a conspicuous place in the building which houses the headquarters of the agency. If the Bell County Board of Education failed to discharge these additional duties under the Open Meetings Act, it did not fully comply with the requirements of the Act. If, on the other hand, the Board of Education discharged these duties, and the record simply does not reflect this fact, the Board cannot be said to have violated the Act. We encourage the Bell County Board of Education 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.
Footnotes
Footnotes
1 To the extent that he failed to submit his open meetings complaint to the proper party, Mr. Carnes's complaint was defective. KRS 61.846(1) states that a person who wishes to enforce the provisions of the Act "shall submit a written complaint to the presiding officer of the public agency suspected of the violation." In the case of an alleged violation by the Bell County Board of Education, or its Local Facilities Planning Committee, the person to whom the complaint should be directed was the Board or Committee chairman, and not Superintendent Gilliam. The complaint also failed to conform to the requirements of KRS 61.846(1) because it did not contain a proposed remedy for the alleged violation.
2 In his complaint, Mr. Carnes also complains about KRS 160.345, and issues relating to representation on the Planning Committee. This office is not authorized to adjudicate disputes arising under KRS 160.345. We therefore do not address these issues.
3 "Notice to the news media, " the Attorney General has observed, "is notice to the public." OAG 79-121, p. 2.