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 Schools Local Facility Planning Committee violated the Open Meetings Act at its August 23, and September 7, 1999, meetings when it denied requests that committee members use microphones so that persons attending the meetings could hear the committee's discussion. For the reasons that follow and based on the weight of the evidence presented, we find that the committee violated the Act by failing to provide meeting room conditions which insofar as feasible allowed effective public observation of these public meetings in contravention of KRS 61.840.
On October 5, 1999, Doyle Carnes submitted a written complaint to Bell County Superintendent Yvonne Gilliam and Local Facility Planning Committee Chairman Eddie Saylor in which he alleged that at its August 23 and September 7 meetings, the committee denied requests that members conduct their discussion using microphones, thus preventing persons attending the meeting from hearing the discussion. As a means of remedying this violation, Mr. Carnes proposed that "the process be restarted with microphones available to each member of the Local Planning Committee to insure the public's access to the entire proceedings."
In a letter dated October 6, 1999, Robert B. Bowling responded to Mr. Carnes's complaint on behalf of the Bell County Schools. With respect to the August 23 and September 7 meeting, he explained:
Those meetings were purposely held in the Bell County Gymnasium, totally open to the public, for the specific purpose of meeting the requirements of the Open Meetings Act. The tables' placements to handle the seventeen (17+) plus committee were arranged as closely to the seating as logically possible. The number of people in attendance at both of those meetings was minimal. At best estimate, no more than twenty (20) people were in attendance. There was no "noise from the crowed" as there was no crowd. It is the Board's belief that all of the people who attended these meetings could clearly hear the business at hand. None of the people in the audience felt a need to move closer, as seating was available closer to the LPC; no one moved closer. . . .
In closing, Mr. Bowling advised Mr. Carnes that his complaint "lacks merit as it cites no specific violation of the Open Meetings Act. " This appeal followed.
In a supplemental letter directed to Mr. Bowling, and dated October 9, Mr. Carnes challenged several statements which appeared in Mr. Bowling's response. Mr. Carnes noted that the committee members seats were arranged in such a manner that "the majority of the members had either their back or their side to the audience making it impossible to hear their responses." Over his and other audience members' objections, Mr. Carnes indicated, the meeting proceeded. He further noted that he and other members of the audience unsuccessfully attempted to remedy the situation by moving closer to the stage where the committee was seated. Mr. Carnes supplemented his appeal to the Attorney General with letters from six other individuals who attended the meetings, and who attested to their inability to hear the committee discussion as a result of the configuration and placement of the tables at which the members were seated.
Upon receipt of this office's notification of Mr. Carnes's open meetings appeal, Mr. Bowling responded on behalf of the Facility Planning Committee. He argued:
The Facilities Planning Committee (FPC) is not a "public agency" pursuant to KRS 61.805(2) and is therefore not subject to the provisions of the Open Meetings of Public Agencies in KRS 61.800, et seq. The FPC was not created pursuant to any ordinance or executive order nor is it incorporated. The FPC is simply a committee which meets with the purpose of formulating a recommendation to provide to the Board of Education. The Board is not bound by anything that the FPC does or recommends. The FPC does not answer to anyone. The FPC is totally independent and meets in a committee to formulate a recommendation (s). The FPC does not appropriate nor disperse public (or any) funds. The FPC receives no funding from the Board. The FPC meets in a format so that its members can communicate their ideas to each other in formulating the basis for their recommendation. The FPC does not have any duty to listen to public opinions nor is it required to invite the public to its meetings (though the public was allowed to be at these meetings). So long as the FPC members could communicate with each other they were able to complete their recommendation.
Mr. Bowling restated his belief that the public could both see and hear the proceedings on August 23 and September 7, concluding that the tables were placed in a circle to facilitate committee member discussion. It was his position that the committee's meetings are "not a public forum . . . the public are guests - not participants."
That position was mirrored in a letter from Superintendent Gilliam which was directed to this office. She asserted:
1. A Facility Planning Committee is not a subcommittee of the board.
2. The members of a Facility Planning Committee are not appointed by the board.
3. A Facility Planning Committee is not controlled by a public agency.
4. A Facility Planning Committee can take no action relative to any public issue.
5. Only one member of a seventeen member Facility Planning Committee is appointed by a public agency, the member appointed by the local board of education.
6. A Facility Planning Committee does not engage in "the formation of public policy" .
7. A Facility Planning Committee is not appointed by the superintendent.
8. A Facility Planning Committee has no control or oversight of any type of local, state or federal revenue.
9. A Facility Planning Committee is not a permanent body established to govern, set policy or provide oversight of any public interest.
10. No public agency is bound by a recommendation, proposal, plan or amendment proposal formulated by a Facility Planning Committee.
11. The Facility Planning Committee, itself, represents community input into the facility planning process. By its composition 702 KAR 1:001 insures representation of the various school community stakeholders. The Committee is the public's voice in the facility planning process. It is not a public agency or a subsidiary of a public agency.
Having carefully considered the arguments advanced by Superintendent Gilliam and Mr. Bowling, and examined the applicable law, we cannot agree that the Bell County Schools Local Facility Planning Committee is not a public agency. It remains the opinion of this office that the committee is a public agency for purposes of the Open Meetings Act, and that its failure to provide meeting room conditions which allowed effective public observation of its meetings constituted a violation of the Act.
The Bell County Schools Local Facility Planning Committee is a public agency as that term is defined in KRS 61.805(2)(d). "Any other holding would clearly thwart the intent of the law."
Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987). That statement of intent is set forth at KRS 61.800 which provides that "the formation of public policy is public business and shall not be conducted in secret . . . ." In construing this provision, the courts have held that public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny,"
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997), since "this is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency." Presidential Search Committee at 886.
KRS 61.805(2)(d) defines the term public agency as "every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act." The Bell County Schools Local Facility Planning Committee owes its existence to 702 KAR 1:001, an administrative regulation which directs school districts to develop local facility plans. Section 2 of that regulation provides as follows:
Each school district's facilities plan, and requested amendments thereto, shall be developed in accordance with the standards and hearing procedures contained in the Kentucky School Facilities Planning Manual , December 1994, and the Master Educational Facility Plan Guidelines , January 1995, which are hereby adopted and incorporated by reference.
It is a fundamental principle of law that a properly promulgated administrative regulation has the full effect of law,
Kentucky Association of Chiropractors, Inc., v. Jefferson County Medical Society, Ky., 549 S.W.2d 817 (1977), and materials expressly incorporated into a regulation enjoy the same status. The Kentucky School Facilities Planning Manual , which has been enacted into law by incorporation into 702 KAR 1:001, envisions the creation of local planning committees by each school district. Each committee:
Is responsible for determining the research required for development of a master educational facility plan which meets both instructional goals of the local board of education and state mandates in providing equivalent educational opportunities to all students in the district at an equitable cost. In conjunction with this, the LPC is to develop a proposed district facility plan for capital construction. The district facility plan shall include the most critical building needs of the district, taking into consideration the district's financial situation.
Thus, the committee is required to provide a proposed district facility plan to the local board of education under the terms and conditions established by legislative enactment. Absent this legislative enactment, the committee would not exist or have a role to play in the formation of public policy.
KRS 61.805(2)(d) does not require that an agency which falls within its definitional parameters be created by ordinance or executive order, or that it be incorporated. The statute does not require that an agency function as a subcommittee of another agency, or that its members be appointed by a public agency or a public official. It does not require that another agency exercise control over it or that it be authorized to expend public funds or take final action. Contrary to the views expressed by Superintendent Gilliam and Mr. Bowling, the Bell County Local Facility Planning Committee plays a critical role in the formation of public policy. It is charged with the duty to develop a proposed district facility plan. The fact that it was not created by executive action and that it serves an advisory function does not alter our conclusion that it is a public agency. See, e.g., Presidential Search Committee , above; OAG 89-25; OAG 91-54; 98-OMD-96.
The expansive definition of public agency found at KRS 61.805(2), coupled with the statement of policy found at KRS 61.800, indicate a legislative intent to facilitate the broadest possible access to meetings at which public business is discussed or acted upon. KRS 61.805(2) must be construed with a view to carry out the intent of the General Assembly, and there is "no reasonable basis for excluding [the Local Facility Planning Committee] from the definition of a public agency. "
Frankfort Publishing Co., Inc., v. Kentucky State University, Ky., 834 S.W.2d 681, 682 (1992). Clearly, the committee is a public agency within the meaning of KRS 61.805(2)(d) inasmuch as it is created pursuant to a legislative act, specifically 702 KAR 1:001.
Having said this, we find that the committee is required to "provide meeting room conditions which insofar as is feasible allow effective public observation of [its] public meetings." KRS 61.840. Although this provision has generally been interpreted to require public agencies to address complaints concerning overcrowding when a larger than anticipated audience attends its meetings (see for example 97-OMD-28 and 99-OMD-117), it has also been interpreted to require agencies to insure that members of the audience can "effectively observe a public meeting" by "hearing what is said . . . ." 97-OMD-28, p. 2,3. In the latter decision, this office held that an agency violated the Open Meetings Act by failing to control the noise at the meeting thereby frustrating the public's ability to observe the meeting. These decisions were premised on the notion that "members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings . . . ." 95-OMD-99, p. 3.
Although controverted by the committee, Mr. Carnes presents substantial evidence that many of the individuals who attended the Bell County Schools Local Facility Planning Committee meetings on August 23 and September 7 could not hear the discussion, and in some instances, could not see the participants, at those meetings. It is uncontroverted that the configuration of the tables on the stage of the meetings rooms, with the members backs to that audience, contributed to this problem. At each of these meetings, the committee was notified that persons in the audience could not hear, but made no effort to remedy the situation, as for example, by providing the committee members with microphones, or moving the tables to a more accessible location. We find that the weight of the evidence presented supports Mr. Carnes's position that the committee failed to discharge its duty to provide meeting room conditions which insofar as was feasible allowed effective public observation of its August 23 and September 7 meetings. To this extent, its actions constituted a violation of the Open Meetings Act, and in particular, KRS 61.840.
A party aggrieved shall have thirty (30) days from the day that the Attorney General renders his decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.848.