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 Frankfort Streetscape Committee violated the Open Meetings Act by failing to give adequate notice of a special meeting held prior to the Frankfort City Commission's January 24, 2000, regular meeting for the purpose of entertaining public comment on the second phase of the Renaissance Kentucky project in downtown Frankfort. For the reasons that follow, we find that the notice given by the Committee was only partially consistent with the requirements of KRS 61.823, and that the committee violated KRS 61.846(1) in failing to respond to the complaint concerning these actions.
On January 28, 2000, Diana Looney submitted a written complaint to Frankfort Streetscape Committee Chairperson William Crumbaugh in which she alleged that publicity for the January 24 meeting, which preceded but was not a part of, the regular commission meeting "was only that normally given for City Commission meetings, which is written notice to local newspapers and radio stations." She indicated that the meeting "was mentioned . . . only a few days before the regularly scheduled meetings." As a means of remedying this violation, Ms. Looney proposed that the Streetscape Committee "schedule another public hearing regarding Phase II of the Renaissance project and give proper legal notice of that hearing." Her complaint went unanswered, prompting her to initiate this open meetings appeal.
In response to our written notification of Ms. Looney's appeal, this office received two answers prepared on behalf of the Streetscape Committee. On February 15, John Gray, an attorney representing the committee, advised us that "public notice of the January 24, 2000, public hearing regarding Phase II of Frankfort's Renaissance Kentucky project was published in the January 19, 2000, Frankfort State Journal ." Although he did not furnish us with a copy of the actual written notice sent to the State Journal , he enclosed a copy of the newspaper notice which read as follows:
Renaissance public hearing set
A public hearing on the second phase of the Renaissance Kentucky project in downtown Frankfort will be held at 5 p.m. Monday at City Hall. The hearing will focus on proposed changes and improvements to the Broadway area. A regular City Commission meeting will follow the hearing.
The commission will meet at 5 p.m. Thursday at City Hall for a work session. Agenda items include a zone change at the intersection of Glenns Creek Road and the East/West Connector and ordinances dealing with city employee pay and the comprehensive plan update.
Mr. Gray's research suggested that although the City of Frankfort has no statutory obligation under KRS Chapter 424 to give legal notice of this type of public hearing, it has been the city's policy to do so voluntarily in order "to encourage a better informed and more involved citizenry here in Frankfort." The city's failure to meet its "self-imposed policy of seven (7) days advance public notice . . . [resulted from] oversight and not . . . design." In closing, Mr. Gray expressed the view that because "the public notice that was published met the twenty-four (24) hour notice requirement for public meetings imposed by KRS 61.823 2 [sic], it seems clear that neither the open meetings provisions of KRS Chapter 61 nor the legal notice provisions of KRS Chapter 424 have been violated."
On February 16, Frankfort City Manager Kenneth R. Thompson contacted this office to "clarify the city's position." He explained:
The city asked the Committee to conduct the hearing and to have it coincide with the Board of Commissioners' Regular Meeting on January 24, 2000. Such was not required under the grant application procedure but requested as an additional effort to give proponents and opponents a formal opportunity to be heard.
Due to a clerical error on the part of a city staff person who was assisting the Committee, the notice of hearing did not get published a full seven days in advance. This was indeed an error. We believe KRS 424.130(d) is clear regarding the seven day minimum notice period whether as complied by the city directly or by any committee or subcommittee acting under its appointed authority.
To rectify the situation the Committee has scheduled a second hearing date. The Streetscape Committee will meet February 23, 2000, to summarize its proposal for Phase II and present this for public hearing February 24, 2000.
Mr. Thompson indicated that he had suggested "this remedy" to Ms. Looney at a Board of Commissioner's work session conducted on February 10. 1
Although we are somewhat baffled by these contradictory responses prepared on behalf of the Streetscape Committee, our confusion does not preclude us from resolving the open meetings issues which Ms. Looney's appeal raises, namely whether the Streetscape Committee fully complied with KRS 61.823 in notifying the public of its January 24 meeting, and whether the committee complied with KRS 61.846(1) in responding to her complaint. We believe that both of these questions must be answered in the negative.
We begin by noting that the Attorney General is not charged with the duty to interpret and enforce the requirements for legal notices codified in KRS Chapter 424, and in particular KRS 424.130, in an open meetings appeal. Where, however, a quorum of the members of a public agency meet to discuss public business or to take action, and a complaint is made concerning the conduct of that meetings, KRS 61.846(2) mandates that "the Attorney General shall review the complaint [and the agency's response thereto] and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." When these laws intersect, our analysis is confined to issues relating to the propriety of the agency's actions under the Open Meetings Act. Under that Act, we find that the Streetscape Committee's actions fell short of the legal requirements.
The Open Meetings Act mandates that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times. . . ." KRS 61.810(1). A meeting is defined as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation or in conjunction with a regular or special meeting. " KRS 61.805(1). The Frankfort Streetscape Committee is a public agency for purposes of the Open Meetings Act, and is subject to the requirements of the Act. 2
The law imposes a duty on public agencies to provide written notice of all special meetings. Indeed, "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Failure to comply "with the strict letter of the law in conducting meetings of a public agency violates the public good. " Id. , citing E. W. Scripps Co. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990). Underlying these observations is the fundamental principle that "the formation of public policy is public business and shall not be conducted in secret. . . ." KRS 61.800.
In 92-OMD-1840, this office observed:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. Failure to follow all of these provisions constitutes a violations of the Open Meetings Act.
92-OMD-1840, p. 3. Specifically, KRS 61.823 provides:
(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. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(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.
As noted, anything short of strict compliance with these requirements "violates the public good. " Ratliff at 923.
The record before us is devoid of evidence that the Streetscape Committee complied with KRS 61.823(4)(b) by posting notice of the meeting in a conspicuous place in the building where the special meeting was held, and in the building which houses the headquarters of the committee at least twenty-four hours before the meeting. Neither Mr. Gray nor Mr. Thompson maintains that a meeting notice was posted. And although the committee "bootstrapped" the notice of its meeting onto the notice of the city commission regular meeting, the notice did not identify the agency conducting the meeting as the Streetscape Committee. To this extent, the notice provided was deficient. In other respects, including the KRS 61.823(4)(a) requirement of timeliness, 3 the notice conformed to the requirements of the Open Meetings Act.
Turning to the issues of procedural noncompliance, we find that the Frankfort Streetscape Committee violated the Open Meetings Act by failing to respond in writing, and within three business days, to Ms. Looney's complaint. KRS 61.846(1) 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 committee issued no response of any kind. We remind the committee that the procedural requirements of the Open Meetings Act "are not mere formalities, but are an essential part of the prompt and orderly processing" of a meetings complaint. We urge the Frankfort Streetscape Committee 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 Although under normal circumstances, this office would treat the issues raised in Ms. Looney's appeal as moot, the committee having acknowledged error and agreed to the proposed remedy, we are foreclosed from doing so here because of the inconsistent positions advanced on behalf of the Streetscape Committee, and because the violation acknowledged was not the open meetings violation which actually occurred. Mr. Thompson acknowledges a violation of KRS 424.130; Mr. Gray asserts that no violation occurred.
2 This issue is not in dispute.
3 The notice was sent to, and placed in, the newspaper well before the minimum twenty-four hours preceding the meeting. Whatever the applicability of KRS 424.130 to the meeting, KRS 61.823 does not require seven day advance notice of a special meeting of a public agency.