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 Somerset Community College's Board of Directors violated the Open Meetings Act at its February 22, 2000, meeting the subject of which was a proposed name change for the college. For the reasons that follow, we find that the Board's actions constituted a partial violation of the Act.
On February 24, 2000, Commonwealth Journal editor R. Michael Johnson submitted a written complaint to Mac Godby, chairman of the Board of Directors, in which he alleged that the Board violated KRS 61.823 by failing to give adequate notice of the February 22 meeting. Specifically, Mr. Johnson complained that "although the staff of Somerset Community College stated that it faxed notice of the meeting to area media, a check of Pulaski County news outlets turned up no such paperwork." Acknowledging that this "alleged violation [could] be argued," based on the assertions of college staff that notification was successfully faxed to both the Commonwealth Journal and the Pulaski News Journal on February 18, 2000, Mr. Johnson nevertheless maintained that the notification of the meeting itself was deficient. He quoted the text of the notification, and attached a copy as an exhibit to his appeal:
FOR IMMEDIATE RELEASE
Contact: Joyce Flynn
(606) 679-8501
SOMERSET COMMUNITY COLLEGE'S BOARD OF DIRECTORS TO MEET
SOMERSET KY FEB 18 - The Board of Directors of Somerset Community College will meet Tuesday, February 22<nd> at 1:00 in the President's Conference Room of Meece Hall, Somerset Campus. The meeting is open to the public. 1
Mr. Johnson proposed various remedial measures, including a proposal that the Board "formally acknowledge" the violation, that the Board "void and nullify" all actions taken at the meeting, and that the Board "show due diligence in the future in notifying area media" about its meetings.
In an undated response directed to Mr. Johnson, Beverly H. Haverstock, general counsel for the Kentucky Community & Technical College System, of which Somerset Community College is a member, denied that the notice was deficient and that a violation had occurred. Relying on KRS 61.823(5), she argued that the February 22 meeting was an emergency meeting, subject to the requirements of KRS 61.823(5) rather than KRS 61.823(2), (3), and (4). She explained:
An emergency existed which caused the Local Board to call an emergency meeting on Tuesday, February 23, 2000, [sic] for the purpose of taking an action to show support for legislation to change the name of the Somerset Community College to Southern Kentucky Community College. The emergency was caused by the fact that the last day to file a bill in the Kentucky Senate was Tuesday, February 22, 2000, and only the General Assembly could make the exception for a name change. The Local Board Chair was contacted by the Mayor and the County Judge late Friday afternoon on February 18, 2000. The community leaders requested that the Chair of the Local Board call a meeting for Tuesday, February 22, 2000, to present to the Local Board their positions in support of the name change. The Local Board Chair agreed to call the meeting for Tuesday at 1:00 PM. However, there was not time to comply with the special meeting notice requirements since Monday, February 21, 2000, was a holiday, Presidents' Day, and it was the end of the day on the last business day before the meeting had to take place. Thus, the Chair directed that notices be sent immediately.
This notice was posted, and it was faxed to the complainant's newspaper. (We understand that the complainant states that the fax was not received.)
There was only one purpose of the meeting, and that was to seek support of the name change in order to aid in procuring the necessary legislation.
The minutes of the meeting are not yet available; however, the emergency meeting had no other business to conduct, and it is logical to conclude that the Chair described the emergency circumstances for the last minute call as directed by the statute. 2
It was KCTCS's position that the Board of Directors "had an emergency situation and complied with the statute governing the calling of emergency, special meetings."
Ms. Haverstock noted that with respect to the Commonwealth Journal , the college has no record of a written request from that newspaper that it be notified of special meetings, as required by KRS 61.823(4)(a), and to this extent the college may well have exceeded its statutory duties. In closing, she affirmed that "there was no agenda other than the name-change-support action requested by Somerset leaders[, and that] there was not time to post and provide the at-least 24 hours notice required under the statute for special meetings." Shortly after receiving this denial, Mr. Johnson initiated an open meetings appeal arguing that the February 22 meeting was illegal because proper notification was not given to the media, such notification as was given was flawed because it did not contain the meeting agenda, the board failed to post written notice in a timely fashion, and the circumstances did not warrant a call for an emergency meeting.
In a supplemental response directed to this office, Ms. Haverstock elaborated on the agency's position. She stated that an additional search by college staff for the Commonwealth Journal's written request for notification of special meetings had yielded no such request, and that Mr. Johnson had been unable to produce one. She therefore maintained that the newspaper was not entitled to written notice of special or emergency meetings. With respect to the timing of the meeting, and the emergency circumstances warranting invocation of KRS 61.823(5), she explained:
Because of the timing of the decision to call the meeting, which was late Friday afternoon and the necessity of having the meeting on the very next day possible given the week-end and Monday holiday, this meeting qualifies as an emergency meeting and is governed by the notice provisions of subsection (5) of KRS 61.823, not a special meeting under subsections (3) and (4) of the statute. However, one point made in the letter to Mr. Johnson needs to be clarified. The emergency meeting was called late Friday afternoon for the next Tuesday for two reasons: Monday was a holiday and Tuesday was the last day to request a bill be drafted for filing in this legislative session. The letter to Mr. Johnson stated that Tuesday, February 22, 2000, was the last day to file a bill. We are sorry for the misstatement as to what exactly the General Assembly's deadline was. But we are certain that there was a deadline of Tuesday, February 22, 2000, that the Board of Directors had to meet, thus necessitating the called emergency meeting. The undersigned has spoken with the staff members at the College who have adamantly maintained that even under those conditions, notices were posted and the local media was notified as is the custom and practice of the Board of Directors.
In support, she attached a written statement from Wendy Goff, an employee at Somerset Community College, affirming that the decision to call the meeting was made late in the afternoon of February 18, that she was instructed to notify the media, that she telephoned the Commonwealth Journal "to confirm that [the notice] would be in the paper no later than Monday, February 21," and that she subsequently faxed the notice to the Commonwealth Journal , once unsuccessfully to fax number 679-4866 and the second time successfully to fax number 679-4866, as well as to the Pulaski News Journal .
It is the opinion of this office that the Somerset Community College Board of Directors erred in characterizing its February 22 meeting as an emergency meeting, and in failing to identify the subject to be discussed in the notice of that meeting. However, because the Board complied with the requirements for conducting a special meeting, codified at KRS 61.823(2), (3), and (4), with the exception of identifying the matter to be discussed, and because the record is devoid of evidence that the Commonwealth Journal submitted a KRS 61.823(4)(a) request for written notification of special meetings of the Board, we find that its only violation of the Open Meetings Act consisted of the deficiency in the content of the notice otherwise delivered and posted in a timely manner.
We begin by commenting on the Board's attempt to justify its actions by characterizing the February 22 meeting as an emergency meeting. KRS 61.823(5), relating to emergency meetings, provides:
In the case of an emergency which prevents compliance with subsections (3) and (4) of this section, this subsection shall govern a public agency's conduct of a special meeting. The special meeting shall be called pursuant to subsection (2) of this section. The public agency shall make a reasonable effort, under emergency circumstances, to notify the members of the agency, media organizations which have filed a written request pursuant to subsection (4)(a) of this section, and the public of the emergency meeting. At the beginning of the emergency meeting, the person chairing the meeting shall briefly describe for the record the emergency circumstances preventing compliance with subsections (3) and (4) of this section. These comments shall appear in the minutes. Discussions and action at the emergency meeting shall be limited to the emergency for which the meeting is called.
Our research of existing case law and Attorney General's open meetings decisions discloses no instances where the courts or this office have determined that circumstances were sufficiently grave to warrant a decision to call an emergency meeting. Commenting on the paucity of authority construing KRS 61.823(5), retired Assistant Attorney General Thomas R. Emerson observed in Kentucky Administrative Law Section 4.7 (UK/CLE 1999) that "no situation is known where a local public agency could legitimately invoke the emergency exception to the delivery and posting requirements." Given the strong admonition issued by the Kentucky Supreme Court in Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997) that "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions[, and] the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," it is apparent that KRS 61.823(5) may be invoked by public agencies on only the rarest of occasions, and then only when emergency conditions prevail.
An emergency is defined as "a serious, unexpected situation or occurrence that demands immediate action." The American Heritage Dictionary (Houghton Mifflin Company, 3d ed 1994). Examples of an emergency under this definition would include, but not be limited to, occurrences such as a natural catastrophe or civil unrest. However, a determination of what constitutes an emergency is intrinsically situational, requiring a case-specific analysis directed at ascertaining whether circumstances are sufficiently serious, unexpected, and in need of immediate action to justify a suspension of the normal rules of proceeding. As noted above, in making this determination, we are guided by the principles set forth in Floyd County . Based upon these principles, we find that discussions relating to a request that a bill be drafted for filing in this legislative session to change Somerset Community College's name cannot be properly characterized as an emergency. Nor can the belief that time did not permit compliance with the requirements for conducting a special meeting, due to an intervening weekend and holiday. Such is not, in our view, a sufficient basis for declaring that an emergency exists. We find no support for the Board's characterization of its February 22 meeting as an emergency meeting.
Nevertheless, we find that the actions taken by the Board prior to the February 22 meeting were, with the exception noted above and discussed below, consistent with the requirements of KRS 61.823(2), (3), and (4), relating to special called meetings. Those statutes provide:
(2) The presiding officer or a majority of the members of the public agency may call a special meeting.
(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.
The disputed meeting, scheduled for February 22, was called by Chairman Godby on February 18, and notification was posted and delivered (apparently unsuccessfully) that day. The intervening three days consisted of Saturday, Sunday, and a legal holiday. However, prior decisions of this office support the view that the twenty-four hours required by KRS 61.823(4)(a) and (b) for posting and delivery of notice need not fall on consecutive work days. For example, in 98-OMD-75, an individual complained that the posting of a notice on Friday, March 6, of a special board of education meeting to be held on Monday, March 9, was inadequate "since few people in the rural community would have occasion to visit the closed board offices" over the week-end. At page 4 of that decision, we concluded that the board could not be said to have violated the Open Meetings Act by failing to post notice at least twenty-four hours before the proposed special meeting. The Attorney General reasoned, "Unlike KRS 61.846(2), which specifically excludes Saturdays, Sundays, and legal holidays from time computations, KRS 61.823(4)(b) contains no such exclusion."" For this reason, we held that the agency complied with the Act by posting the notice "well in excess of the twenty-four hour minimum established by law." 98-OMD-75, p. 4.
As noted, Mr. Godby called the meeting on February 18, and delivery of notices was attempted, if not accomplished, that day. Contemporaneously, notice was posted per KRS 61.823(4)(b). 3 On the record before us, we conclude that the Board complied with the notice requirements codified at KRS 61.823(3) and (4) some seventy-two hours before the special meeting took place, and thus fully discharged its duties under the cited provision. Why neither the Commonwealth Journal nor the Pulaski News Journal received these notices remains a mystery.
Whether the Commonwealth Journal and the Pulaski News Journal were entitled to notice is not a mystery. Ms. Haverstock asserts, and Mr. Johnson does not refute, that no media organizations have filed written requests with the Somerset Community College or its Board of Directors to receive notice of special meetings. KRS 61.823(4)(a) requires submission of written requests for notice by media organizations, and periodic resubmission of such requests. The Commonwealth Journal is not automatically entitled to receive notice by virtue of its status as a media organization. In 98-OMD-74, we found no error in a public agency's failure to provide notice to a media organization that had not requested it. Applying this reasoning to the appeal before us, we find no error in the Board of Director's apparently unsuccessful attempts to deliver notice to the Commonwealth Journal since the newspaper had no request for notice on file.
We do, however, find that the notice prepared by the Board was deficient. As noted, 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.) In 98-OMD-74, 96-OMD-216, and 94-OMD-119, this office held that the failure to include an agenda of specific matters to be discussed at a special meeting constituted a violation of the Open Meetings Act. The fact that only one item was to be discussed at the February 22 meeting, namely the college's name change, does not alter our view. When a meeting is called for a special purpose, it is incumbent on the agency to identify the topics to be discussed so as to give notice to the public of that purpose, and to limit itself to a discussion of these topics. Underlying each of these requirements is the clearly articulated goal of maximizing notice. To the extent that the notice issue on February 18 did not include an agenda, it did not conform to KRS 61.823(3).
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 A handwritten note appearing at the foot of thenotification read:
Sorry we were unable to reach you by phone, but this is a special board meeting
Called by Mac Godby
Faxed to CJ & Pul News Journal - 2/18/00