Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Local Facility Planning Committee violated provisions of the Open Meetings Act by failing to comply with the notice requirements set forth in KRS 61.823 prior to its meetings of August 23, 1999 and September 7, 1999 and whether the August 23, 1999 meeting went beyond items listed in the agenda in the notice.
On October 18, 1999, Mary K. Wilcox submitted a complaint to Bell County Superintendent Yvonne Gilliam and Eddie Saylor, Chairman of Local Facilities Planning Committee, in which she asserted that "the meetings of the Local Planning Committee on August 23, 1999, and September 7, 1999 were advertised incorrectly and did not comply with the guidelines of KRS 61.805 - 61.850 of the Open Meetings Act and are a violation of the Act." Ms. Wilcox argued:
The advertisement for the August 23, 1999 meeting listed an incorrect date and also specified that the meeting was "to organize information for the new master plan and to nominate a chairperson ." The meeting was for an amendment for the Master Facility Plan and the minutes of this meeting reflect more than these two items mentioned. . . .
Addressing the advertisements for the September 7, 1999 meeting, Ms. Wilcox further argued:
Both of the advertisements for the September 7, 1999 meeting of the Local Planning Committee made no mention of an agenda . The first advertisement for this meeting made no mention of it being a public forum. The second advertisement for the meeting, which appeared in the paper on September 7<th>, identified the meeting at 6:00 p.m. as a public forum, but failed to list an agenda for the meeting of the Local Planning Committee that followed at 9:00 p.m. . . . .
To remedy the violation, Ms. Wilcox requested that the Local Facility Planning Committee "start the process over and follow the guidelines for special called meetings."
In a response dated September 19, 1999, Superintendent Gilliam, denied that an open meetings violation had occurred. She advised:
The meetings of the Local Facility Planning Committee were advertised appropriately as indicated on attachments A and B. In addition to the public notices in the local newspaper, flyers were sent home by each elementary and middle school child announcing each meeting. See attachments C and D. . . .
Not satisfied with this response, Ms. Wilcox initiated an open meetings appeal to the Attorney General.
After receipt of Ms. Wilcox's letter of appeal, Robert B. Bowling, attorney for the Board, provided this office with a response to our request for additional information on the issues raised in the appeal. In his response, Mr. Bowling stated:
Pursuant to your letter dated November 3, 1999, please review the following information. Enclosed please find a copy of the August 20, 1999 and the August 24, 1999 issues of the Middlesboro Daily News which circulates throughout the entire county. The issues contain articles that list the agenda for both the August 23<rd> and September 7<th> meetings. Along with said newspaper articles, you will find the Bell County Facility Plan Amendment Timeline containing the agendas for the committee meetings.
To respond to the latter question in said letter, I have also submitted copies of notices with agendas for both meetings. Said notices and agendas were posted prior to each meeting in the building where the special meetings took place and in the building which houses its headquarters.
We begin by noting that this office has previously addressed the issue of whether the Local Facility Planning Committee violated provisions of the Open Meetings Act in the noticing and conduct of the very same August 23, 1999 and September 7, 1999, special meetings. 99-OMD-184; 99-OMD-196.
In 99-OMD-184, we addressed the issue of whether the Local Facility Planning Committee failed to give adequate notice of the August 23, 1999 and September 7, 1999, meetings by failing to include the term "public" in its published notice of the meetings. We held that the 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. As a result, we concluded that the omission of the term did not constitute a violation of Act.
In 99-OMD-196, the issue was whether the Local Facility Planning Committee violated the Act at the meetings when it denied requests that committee members use microphones so that persons attending the meetings could hear the committee's discussion. Based on the weight of the evidence presented at that time, we found 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 the Act, and in particular, KRS 61.840. Addressing a separate issue, we determined that the Committee was a "public agency" within the meaning of KRS 61.805(2)(d), inasmuch as it was created pursuant to a legislative act, 702 KAR 1:001.
We restate what we said in 99-OMD-184. 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(3) states that in the event of a special meeting, the public agency must provide written notice. The notice must contain "the date, time, and place of the special meeting and the agenda ." (Emphasis added.)
We first address the newspaper notice of the August 23<rd> meeting that Ms. Wilcox asserts is flawed because it lists an incorrect date and misstates the agenda. The issue of the newspaper running incorrect information in the newspaper notice for these meetings was raised in 99-OMD-184. The Superintendent, in responding to the complainant in that case, acknowledged that the newspaper had run the incorrect information, but indicated that the correct information had been provided to the newspaper.
In our view, the Committee cannot be held accountable, if it provides the correct information and the newspaper places an incorrect date on the notice. However, it appears that the misinformation was corrected, as the Committee provided this office with a copy of a notice that was run in the Middlesboro Daily News on Friday, August 20, 1999, that listed the correct date for the August 23, 1999 meeting.
Ms. Wilcox also challenges the agenda set out in this notice. The agenda specified that the meeting was "to organize information for the new master plan and to nominate a chairperson. " Ms. Wilcox argues that the meeting was for an amendment for the Master Facility Plan and the minutes reflect much more than the two items mentioned. Our review of the minutes of the August 23<rd> meeting reveals that a new chairperson was nominated and elected and the meeting centered around discussions of the parameters to be met with respect to an amendment of the master facility plan and the facility planning process. Although different items were discussed, they related to the amendment of the master facility plan. In our opinion, the substantive items discussed fall within the scope of the advertised agenda (to organize information for the new master plan and the nomination and election of a new chairman) and was not a violation of the Open meetings Act. Both parties have indicated that the Local Planning Committee was formed by the Bell County Board of Education for the sole purpose of developing an amendment to the Master Facility Plan.
Finally, addressing the newspaper notices of the September 7<th> meeting, Ms. Wilcox asserts that one notice listed no agenda and another notice listed the agenda for the 6:00 p.m. meeting of the Committee, but did not list an agenda for its 9:00 p.m. meeting later that night.
Mr. Bowling, in his response, provided a copy of an August 24, 1999 news article from the Middlesboro Daily News concerning the Committee's adoption of the Bell County Facility Plan Amendment Timeline and printed the timeline which, among other dates, lists the agenda of the September 7<th> 6:00 p.m. meeting. Mr. Bowling also provided this office with a copy of Bell County Facility Plan Amendment Timeline which contains the agendas for both the August 23<rd> and September 7<th> meetings. Mr. Bowling states that notices and agendas were posted prior to each meeting in the building where the special meetings took place and in the building which houses its headquarters. Ms. Wilcox states that notices were posted on the buildings where the meetings took place, but saw no agendas posted.
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 Committee complied with the notice requirements of the Act by including the agenda of the special meetings in its written notices. The parties present two separate factual scenarios relative to the agendas which are widely divergent. The question presented thus involves the resolution of a factual dispute which we can not, on the written record before us, resolve.
Some of the copies of notices provided this office do not have the agenda of the meetings on them. Others do. Those notices that do not contain an agenda would not meet the requirements of KRS 61.823(3), and thus would constitute a violation of the Open Meetings Act.
There is conflicting evidence as to whether the agenda were posted in the building where the meetings took place, or in the building which houses the headquarters of the agency. If the Local Facility Planning Committee failed to discharge this additional notice requirement under the Open Meetings Act, it did not fully comply with the requirements of the Act. If, on the other hand, the Committee did comply with the notice requirements, and the record simply does not reflect this fact, it cannot be said to have violated the Act.
Newspaper articles about the timeline and meeting agendas of the Committee does not serve as a substitute for strict compliance with the requirements of KRS 61.823. The notice must contain the date, time, and place of the special meeting and the agenda . However, we conclude that publication of the timeline for the Committee's meetings and their agendas in the local newspaper and a posting of the same in the building where the special meetings took place and in the building which houses its headquarters, assuming this occurred, constitute a substantial compliance with notification requirements. Any noncompliance was mitigated by the Committee's efforts to furnish additional information to the media and the public.
We encourage the Local Facility Planning Committee 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.