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 Powell County Industrial Development Authority violated the provisions of the Open Meetings Act at meetings held on August 1, 1996, August 22, 1996, January 21, 1999, and April 13, 1999, and other meetings "where the Estate of Nannie Neal real property [sic] was discussed." For the reasons that follow, we find that although the record is insufficient to support a claim that specific violations occurred at these meetings, remedial measures are clearly called for, PCIDA having acknowledged its unintentional failure to comply with the requirements of the Open Meetings Act since the Authority's inception.
On February 18, 2000, Joe H. Neal submitted a complaint to Steven D. Hales, chairman of the Powell County Industrial Development Authority, in which he stated:
Because you are the presiding officer at the Powell County Industrial Authority Inc. meetings I am submitting to you a complaint concerning closed meetings from 1983 to present date. In 1974, the general Assembly enacted the Open Meetings Act, KRS 61805 to KRS 61850, which establishes a right of access to public meetings. One of your advisory directors mr. John Brewer and one of your members mr. Jerry Miller were finically enriched from the ownership and sell of the real property of the Nannie Neal Estate to the Powell County Industrial Development Inc. because of the improper held session of August 1 1996 and August 22, 1996 and January 21 1999 and April 13 1999 and any sessions where the Estate of Nannie Neal real property was discussed all actions should be declared null and void. [Sic.]
Mr. Neal did not state the circumstances which constituted the alleged violations of KRS 61.805 to 61.850 at these meetings.
On February 24, 2000, Mr. Hale responded to Mr. Neal's complaint. In that response, he denied "any material or willful violation of the Open Meetings Act. " He explained:
The only regular meeting of the PCIDA is its annual meeting, which is held in January of each year. The only meeting listed in your complaint that was a "regular" meeting was the one held on January 21, 1999. We would note that at any time since our incorporation in 1983 you could have asked to examine our by-laws to request the exact date of our annual meeting. You have never done so.
The meetings of the PCIDA on August 1, 1996, August 22, 1996 and April 13, 1999 were "special meetings" held pursuant to KRS 61.823. The local news media has not requested notification of "special meetings", and notice is not required to the public at large under that statute.
Further, the PCIDA is exempt from your complaint pursuant to KRS 61.810(1)(b) as any public deliberations by the PCIDA regarding the possible future acquisition of real property would certainly affect the value of any such property being discussed.
In closing, Mr. Hale expressed the belief that Mr. Neal's "demand to have all meetings declared null and void is unreasonable, unrealistic and would result in complex and costly litigation that would paralyze the efforts of the PCIDA to help the citizens of Powell County." Dissatisfied with PCIDA's response, Mr. Neal initiated this open meetings appeal, alleging numerous violations of the Act based on his belief that the Authority took final action in a series of closed sessions.
In a supplemental response directed to this office, PCIDA's secretary/treasurer, Deborah Tipton, elaborated on the Authority's position. She explained:
Powell County is a small community. The PCIDA has operated for more than 16 years without benefit of an attorney. The PCIDA has operated under the assumption that knowledge of all meetings was generally known in the community. This is reflected by the attendance at the four meetings which are the subject of Mr. Neal's complaint.
The minutes make no mention of any closed session. The attendance at the meetings were as follows:
Meetings August 1, 1996 - All members present and 4 guests
Meetings August 22, 1996 - All members present and 4 guests
Meetings January 2, 1999 - All members present and 5 guests
Meetings April 12, 1999 - One member absent and 6 guests
Our intention has never been to keep public from attending our meetings. They are invited and welcome.
Reiterating Mr. Hale's assertion that PCIDA had not engaged in "any material or willful violation of the Open Meetings Act, " Ms. Tipton concluded that "after consultation with counsel, the PCIDA agrees that it will strictly comply with statutory notice requirements in the future and will not rely upon 'general knowledge' in the community."
It is the opinion of this office that Mr. Neal presents insufficient evidence to support a claim that a violation, or violations, of the Open Meetings Act occurred at the two August, 1996, meetings and the January 21, and April 13, 1999, meetings of the Authority. In his original complaint, Mr. Neal did not allege that PCIDA failed to give adequate notice of these meetings, as required by KRS 61.823(2), (3), and (4)(a) and (b) for special called meetings. Nor did he allege that PCIDA conducted improper closed sessions in contravention of KRS 61.840, or that minutes were not recorded in contravention of KRS 61.815. His vague allegations that these and all other meetings at which the Nannie Neal property was discussed were "improper held session [s]" do not state a violation of "the provisions of KRS 61.805 to 61.850," and are therefore not cognizable under the Open Meetings Act.
Moreover, even if specific violations had been alleged and substantiated, the Attorney General is not empowered to "declare[] null and void" all actions taken at these meetings. Pursuant to KRS 61.846(2), the Attorney General is only authorized to "review the complaint and denial and issue within ten 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." The relief that Mr. Neal seeks is not available through this office, and is available, if at all, by and through the circuit court of the county where the public agency has its principal place of business or where the alleged violation occurred. KRS 61.848(5).
Nevertheless, the record before us demonstrates a need for PCIDA to carefully review all of the requirements of the Open Meetings Act. Contrary to statements made by Mr. Hale in his response to Mr. Neal's original complaint, PCIDA is not "exempt from [Mr. Neal's] complaint pursuant to KRS 61.810(1)(b) as any public deliberations by the PCIDA regarding the possible future acquisition of real property would certainly affect the value of any such property being discussed." In reality, " 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. . . ." KRS 61.810(1)
The provision upon which Mr. Hale relies authorizes closed session deliberations held during a meeting of PCIDA on the future acquisition or sale of real property if publicity is likely to affect the value of the property, but does not authorize PCIDA to convene an entire meeting in a closed forum, or without notice to the public. Instead, PCIDA must convene in an open, public session and approve the minutes of its previous meeting before going into a closed session authorized under one of the exceptions codified at KRS 61.81)(1)(a) through (1), and after having observed the formalities for conducting a closed session set forth at KRS 61.815(1)(a) through (d).
With reference to the notice requirement, we note that although it is true that a public agency is not obligated to give written notice to media organizations that have not filed a written request to receive notice, the agency is obligated to give written notice, consisting of the date, time, and place of the special meeting and the agenda, to every member of the public agency, at least twenty-four hours before the meeting, and to post the notice "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." KRS 61.823(4)(b). We therefore encourage the Authority to carefully review and comply with all of the requirements of 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.