Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Harrodsburg City Commission violated the Open Meetings Act, and in particular the notice requirements for special meetings codified at KRS 61.823, prior to its June 22, 2000, special meeting. For the reasons that follow, we find that with the exception of the factual dispute relating to actual delivery of the special meeting notice to Commissioner Jerry Royalty which we cannot resolve, no violation of the Open Meetings Act occurred in the course of events leading up to the June 22 meeting.
On June 21, 2000, attorney Richard Clay, acting on behalf of his client Commissioner Royalty, submitted a written complaint to Mayor Carol Dean Walters in which he alleged certain violations of the Open Meetings Act. Those violations were identified as:
1. A meeting or meetings attended by Lonnie Campbell, Joe Hood, and Jackie Springate, resulting in a "Notice Special Called Meeting Harrodsburg City Commission" for Thursday, June 22, 2000, at 5:30 p.m. These meetings were held without notice to Mr. Royalty, a member of the City Commission, and without notice to the public or media.
2. There were no minutes recorded of proceedings at the meeting or meetings described in paragraph 1, above.
3. Notice of the proposed meeting has not been delivered personally, transmitted by facsimile, or mailed to Mr. Royalty. It was discovered by him upon reading the bulletin board in City Hall.
As a means of remedying these violations, Mr. Clay proposed that the actions taken at the "unlawful meeting or meetings" be vacated, and that the proposed special meeting be cancelled "until . . . the notice provisions of the statute are complied with to the letter of the law." In addition, he requested that the subject of the proposed special meeting "be placed on the agenda of a regular meeting of the Harrodsburg City Commission where all interested parties may attend and participate instead of being held in the secretive fashion apparently desired by the members calling it." Attached to his complaint was a copy of the Notice of the June 22, 2000, meeting of the City Commission signed by Commissioners Campbell, Hood, and Springate. Having received no response to his complaint, Mr. Clay initiated this open meetings appeal, also on behalf of Commissioner Royalty, on July 13, 2000.
In a response directed to this office following commencement of Mr. Clay's appeal, Harrodsburg City Attorney Tebbs S. Moore denied the allegations contained in the complaint. He provided the following narrative of the events leading up to the June 22 special meeting:
1(A). According to statements made by Commissioners Campbell, Hood and Springate at the special meeting on June 22, 2000 and again at a regular meeting on June 27, 2000, there was no meeting of these three commissioners to initiate the special meeting conducted on June 22, 2000 at 5:30 P.M.
(B) The three named commissioners acted pursuant to KRS 61.823(2) as they constituted a majority of the five member city commission.
(C) aa. Written notice signed by the three majority commissioners was distributed by fax from the City Clerk on the morning of June 21, 2000 to the media.
bb. The Chief Administrative Officer (Edward Music) posted the written notice on the public bulletin board at City Hall between 9:00 A.M. and 10:00 A.M., Monday, June 21, 2000.
cc. Commr. Jerry Royalty and his attorney, Richard Clay observed the notice about 10:30 A.M., June 21, 2000 on the bulletin board and at that time the CAO delivered a copy of the notice to Attorney Clay or Commr. Royalty, who were together at that time in City Hall discussing other records they had requested for review.
dd. A copy of the notice was placed on the Mayor's desk between 9:00 A.M. and 10:00 A.M., on June 21, 2000, where she routinely and regularly receives her official mail as she previously requested. A copy of the notice was also put in Commr. Royalty's "box" in the Mayor's office, where he had previously requested the Clerk to place any mail or messages for him.
ee. All of the parties had more than 24 hours notice of the special meeting held June 22, 2000 at 5:30 P.M. at City Hall.
2(A) Since there was no meeting by the three commissioners to call the special meeting there obviously were no minutes of a meeting prior to June 22, 2000, which could be recorded. This was explained to Commr. Royalty and the public during the special meeting June 22, 2000 and again at the regular meeting on June 27, 2000.
(B) Minutes were recorded of the special called meeting of June 22, 2000, which was open to the public.
3. Commr. Royalty had actual notice of the meeting when he observed the notice on the bulletin board as he walked through city hall the morning of June 21, 1000, and when he was given a copy by the CAO as stated above soon thereafter.
It was the city's position that the three members of the City Commission who called the special meeting "acted within the guidelines of the applicable statutes," and that therefore Mr. Clay's appeal should be dismissed. With the exception of the issue of actual delivery of notice to Mr. Royalty noted in the introductory paragraph of this decision, we agree.
The requirements for holding a special meeting are found at KRS 61.823, and provide, in relevant part:
(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. . . .
(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.
The Open Meetings Act thus imposes precisely defined duties on public agencies to provide written notice of all special meetings. "The express purpose of the Open Meetings Act, " the Kentucky Supreme Court has observed, "is to maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (19979). 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.
Based on the response submitted to this office by Mr. Moore, we find that the Commission complied in all particulars with the requirements found at KRS 61.823 prior to, and in the course of, the June 22 special meeting. Pursuant to KRS 61.823(2), a majority of the Commission members called the meeting. Pursuant to KRS 61.823(3), written notice was prepared consisting of the date, time, and place of the special meeting and the agenda. Pursuant to KRS 61.823(4)(a), written notice was faxed to the media on the morning of June 21, in excess of 24 hours before the June 22 meeting, and the notice posted on the public bulletin board at City Hall on the same morning, the building where the special meeting would be held and the building that housed the headquarters of the Commission being one and the same. Mayor Walters does not dispute that a copy of the notice was placed on her desk 24 hours before the meeting.
What is disputed is whether a copy of the notice was also transmitted to Commissioner Royalty either personally, by fax, or by mail. Commissioner Royalty argues that he did not receive the written notice, the Commission maintains that he did, a copy having been placed in his "box" in the Mayor's office "where he had previously requested the clerk to place any mail or messages for him." 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. We have largely resolved the questions of law which Mr. Clay's appeal raises in favor of the Harrodsburg City Commission. The remaining question relating to the actual delivery of the notice to Commissioner Royalty involves the resolution of a factual dispute which we cannot, on the written record before us, resolve. Acknowledging that we are unable to resolve the factual dispute, we otherwise conclude that the City Commission complied with the legal requirements for calling a special meeting.
Although we find no error in the Commission's conduct relative to the events leading up to, and in the course of, the June 22 special meeting, we note in closing that its failure to respond in writing to Mr. Clay's June 21 complaint constituted a violation of the Open Meetings Act. 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 Harrodsburg City Commission failed to issue a written response, and in so doing committed a procedural violation of the Open Meetings Act. We urge the Commission to review KRS 61.846(1) 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.