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 Carter County Fiscal Court violated provisions of the Open Meetings Act by failing to give adequate notice of its October 1, 2, and 3, 1999, meetings held at Carter Caves State Park. Based on the authorities cited, and the weight of the evidence before us, we find that the fiscal court only partially complied with the specific requirements of KRS 61.823 in notifying the public of its meetings. The record does not support the fiscal court's claim that it fully complied with this provision.
On October 25, 1999, James E. Flaugher, Jr., submitted a written complaint to Carter County Judge/Executive Alice Joy Binion in which he asserted that the failure of the fiscal court to provide adequate notice of its October 1, 2, and 3 meetings, along with its decision to conduct those meetings at Carter Caves State Park, contravened provisions of the Open Meetings Act and KRS 67.090. As a proposed remedial measure, Mr. Flaugher urged the fiscal court to nullify any actions taken at those meetings, and to conduct all future meetings in "the Carter County Fiscal Court Meeting Room. " Mr. Flaugher's complaint went unanswered, prompting him to initiate this open meetings appeal.
Upon receipt of this office's notification of Mr. Flaugher's open meeting appeal, Assistant County Attorney Todd K. Trautwein responded on behalf of the Carter County Fiscal Court. He began by noting that "the meeting of the Carter County Fiscal Court on October 1, 2, and 3, 1999, was a public meeting and was open to the public at all times." With reference to the adequacy of public notice of the meeting, Mr. Trautwein explained:
On Wednesday, September 29, 1999, Alice Joy Binion, Carter County Judge/Executive gave written notice by facsimile machine of the special meeting of the Carter County Fiscal Court which occurred on Friday, October 1, 1999, and the meetings to discuss personnel policy which occurred on Saturday, October 2, 1999 and Sunday, October 3, 1999, to Mr. Jim Phillips of WGOH radio in Grayson, Carter County, Kentucky. Mr. Phillips was provided with a copy of the agenda.
Mr. Phillips broadcast notice of the October 1, 1999 special meeting and the October 2 and 3, 1999 personnel policy meetings on WGOH radio on September 30, 1999 at 7:00 a.m., 12:00 p.m., and at 5:00 p.m.
Notification to the media and members of the Carter County Fiscal Court was substantially in excess of the minimum time frame mandated by KRS 61.823. There was no violation of KRS 61.823.
In support, Mr. Trautwein attached an affidavit from Judge Binion in which she affirmed these statements. He did not attach a copy of the notice which Judge Binion faxed to the members of the fiscal court and Mr. Phillips. On the issue of the suitability of the site chosen for the meeting(s), Mr. Trautwein indicated that the Carter Caves State Park meeting room is located in Carter County, and that it "was selected and authorized by the Carter County Fiscal Court because of its central location in the county."
It is the opinion of this office that the notice issued by the Carter County Fiscal Court on September 29 was only partially consistent with the requirements of KRS 61.823. That statute provides, in 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.
In construing these provisions, 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 strict 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 A.2d 563, 564 (N.J. Super. Ch. 1982).
To promote this goal, the Open Meetings Law establishes the specific requirements for public agencies, set forth above, which must be fulfilled prior to conducting a special meeting. "The language of [KRS 61.823] 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.
Although the fiscal court did not furnish this office with a copy of the September 29 written notice, we have obtained a copy from Jim Phillips, news director at WGOH radio in Grayson, to whom Mr. Flaugher, Mr. Trautwein, and Judge Binion refer in their correspondence with this office. In a conversation with the undersigned, Mr. Phillips confirmed that he received a copy of the notice by facsimile transmission, in advance of the meeting, and that the meeting was announced on air on more than one occasion. Mr. Philips further confirmed that he attended the October 1 meeting, but that it was his understanding that the subsequent October 2 and 3 meetings were work sessions. He did not recall having seen any posted notice of the meeting(s) in the building where the meetings were held.
The notice which Mr. Phillips furnished to this office reads as follows:
SPECIAL FISCAL COURT MEETING CARTER CAVES STATE PARK FRIDAY OCTOBER 1, @7:00 PM
AGENDA
1. Presentation of recommendations by the Blue Ribbon Committee for construction of a new correctional facility.
2. Set tax rate ___ [illegible].
The transmission date appearing on the notice, which was also partially obscured, must have been in error insofar as it indicates that notice was faxed on "01/02/1994 21:03."
In the absence of proof to the contrary, we must assume that this was the only written notice of the special meeting or series of special meetings conducted at Carter Caves State Park from October 1 through October 3. On this basis, we conclude that notice was, in fact, deficient. The notice does not state the date, time, or place of the subsequent work sessions/ meetings, or the topic to be discussed at those meetings, namely personnel policy. Further, the record is devoid of evidence that notice was 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 Fiscal Court. If the Carter County Fiscal Court 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 Carter County Fiscal Court discharged these duties, and the record simply does not reflect this fact, the fiscal court cannot be said to have violated the Act. 1
Anticipating the argument that the October 2 and 3 meetings were merely adjourned meetings of the October 1 meeting, we note that the Attorney General has observed:
If a regular meeting is adjourned, any business that would have been proper for the body to consider at that meeting may be considered and acted upon at the adjourned meeting, but if it is a special or called meeting which is adjourned, nothing can be done at such adjourned meeting unless it could have been considered and acted upon at the special or called meeting.
93-OMD-123, p.4, quoting McQuillin Mun. Corp. (3<rd>. Ed.), § 13.39. According to the notice which Mr. Phillips furnished to us, the October 1 meeting was advertised as a special meeting. As noted, the published agenda of that meeting identified as the only topics of discussion recommendations for the construction of a new correctional facility and the setting of a tax rate. No reference was made to discussion of personnel policy. Hence, the fiscal court was not authorized to discuss the latter topic in an adjourned special meeting. Accord, KRS 61.823(3) ("Discussions and action at the meeting shall be limited to items listed on the agenda in the notice" ).
Anticipating the argument that the October 2 and 3 meetings were merely work sessions, and therefore not subject to the requirements of the Open Meetings Act, we refer the Carter County Fiscal Court to this office's decision in 95-OMD-64 (enclosed). In that decision, the Attorney General observed:
KRS 61.805(1) defines "meeting" as
KRS 61.810(1) provides in part that, "All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]"
These definitions are broader in scope and coverage than what [the agency] contemplates. They go beyond "action on any matters of public business" and cover meetings of a quorum "at which any public business is discussed." See OAG 78-411 at page two. This office concluded in OAG 82-91 that a work session attended by a quorum of the fiscal court, at which the presentation of the budget is discussed, is an open and public meeting.
By definition a gathering of a quorum of the members of a public body, at an event described as a work session, must involve at least the discussion of public business or it would be a private session as opposed to a work session.
95-OMD-64, p. 2. Simply stated, characterizing a meeting as a "work session" does not relieve an agency of its duties under the Open Meetings Act.
Turning to the issue of the site of the October 1, 2, and 3 meetings, we do not find that the decision to hold the meetings at Carter Caves State Park constituted a violation of the Open Meetings Act. The only reference in the Act to the site of a public meeting appears at KRS 61.820. That statute provides, in part:
All meetings of all public agencies of this state, and any committee or subcommittees thereof, shall be held at specified times and places which are convenient to the public ?
KRS 61.820 does not require that the fiscal court hold its meetings "at the county seat or at other county government centers," and the statute in which that language appears, KRS 67.090(1), is not enforceable in an open meetings appeal.
In closing, we note that the Carter County Fiscal Court's failure to respond to Mr. Flaugher's open meetings complaint constituted a violation of KRS 61.846(1). That statutes provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The fiscal court apparently issued no response of any kind. We urge the fiscal court to review the cited provision to insure that future responses conform to the Open Meetings Act.
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 The fact that Mr. Flaugher did not personally receive written notice of the meeting does not constitute a violation of the Open Meetings Act. See 96-OMD-216 (enclosed).