Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Attorney General
Open Meetings Decision
The question presented in this open meetings appeal is whether the Harrodsburg City Commission violated KRS 61.823(3) by discussing and acting upon items at its June 22, 2000, special meeting that were not listed on the agenda in the notice of that meeting. For the reasons that follow, we conclude that the items discussed, and acted upon, were limited to items listed on the agenda, with one exception not complained of, and that the Commission therefore did not violate the Open Meetings Act.
On July 13, 2000, attorney Richard Clay, acting on behalf of his client, Harrodsburg City Commissioner Jerry Royalty, submitted a written complaint to Mayor Carol Dean Walters in which he alleged that the following violations of the Open Meetings Act had occurred at the Commission's June 22 special meeting:
1. According to the minutes of the meeting, there was a motion "that the Commissioner for the Police Department be changed to Commissioner Springate ...." This motion was enlarged corruptly at the June 27 meeting to have been the enactment of an ordinance not drafted by the City Attorney until approximately June 26, 2000. The minutes of June 22 were then apparently amended June 27 falsely to reflect the first reading of this ordinance.
2. The proposed ordinance does not reflect the motion on which it is based, because it assigns communications to Commissioner Springate.
3. The notice of the special meeting said nothing about enactment of an ordinance, contrary to KRS 61.823(3).
As a means of remedying these violations, Mr. Clay proposed, inter alia , that "the ordinance falsely identified as having been read should be determined never to have been enacted," and that "the usurper to Commissioner Royalty's position should be prevented from interfering with Commissioner Royalty's discharge of his lawful responsibilities granted by a lawfully enacted ordinance . . . ."
In a response dated July 20, 2000, Harrodsburg City Attorney Tebbs Moore speculated that the basis for Mr. Clay's July 13 complaint "generally surrounds the action taken in the open meeting on June 27, 2000, and the minutes which reflect such action." Mr. Moore indicated that he had discussed this matter with the Mayor and Chief Administrative Officer for the City, "and suggested it be put on the agenda for the next city meeting and if the Commission chooses, a reenactment of the Ordinance can be discussed and possibly initiated. " Mr. Moore neither acknowledged nor denied Mr. Clay's allegations concerning violations of the Open Meetings Act that occurred at the June 22 meeting. Having advised Mr. Moore that the minutes of the June 27 meeting "reflect a further violation of the Open Meetings Act at the [June 22] meeting" and to this extent "the complaint is directed to June 22," Mr. Clay initiated this appeal on August 1, 2000.
In a supplemental response directed to this office following commencement of Mr. Clay's appeal, Mr. Moore elaborated on the City Commission's position. He explained:
The purpose of the meeting as set forth in the written notice was "to address the individual duties of the commissioners . . . and to make such changes in the departmental responsibilities of the commissioner . . . as deemed necessary and appropriate."
This is exactly what was discussed and acted upon by the majority of the Commission at the June 22nd meeting as reflected in the minutes of the special called meeting of June 22nd . . . . The minutes show that Commissioner Campbell's first motion died because of lack of a second, but Commissioner Campbell's second motion was passed with three aye votes and one no vote. The change of Commissioner Royalty's responsibilities was to be effective immediately.
Mr. Moore acknowledged that upon closer analysis, he believed that changes in Commissioner Royalty's responsibilities "would be more correctly accomplished by ordinance, [rather] than by resolution," and that he prepared an ordinance reflecting these changes prior to the Commission's June 27 regular meeting. Because the Commission's earlier actions were "incorporated into the ordinance, " Mr. Moore explained, "the Commission elected to consider that a first reading of the ordinance had been effectively accomplished at the June 22nd meeting when the resolution was adopted." Consequently, the minutes of the June 27th meeting "reflected the ordinance was passed . . . with the Commission having considered the June 22nd resolution as the ordinance's first reading. " It was this incident that Mr. Clay characterized as a "corrupt[] enlargement" of the June 22 motion, and to which he vehementlyobjected in his July 13 open meetings complaint. Mr. Moore's subsequent proposal that the Commission reenact the ordinance to insure procedural regularity was rejected by a majority of the Commission members who believed that "the matter needed no further action." To facilitate our review, Moore furnished this office with a copy of the minutes of the June 22 special meeting.
Having examined the minutes of the June 22 special called meeting, we conclude that the only matter discussed that was not listed as an agenda item in the meeting notice was an open meetings complaint submitted by Mr. Clay on behalf of his client, Commissioner Royalty. The minutes indicate that there was some discussion of the merits of Mr. Clay's complaint, but that the Commissioners then turned to the subject of the "Recommendation to Withdraw Commissioner's Responsibilities or Change Commissioner that is Responsible for Police Department. " As Mr. Moore correctly notes, the notice for the June 22 meeting identified as its purpose the need "to address the individual duties of the commissioners as set out in KRS Chapter 83A and to make changes in the departmental responsibilities of the Commissioners, pursuant to KRS 83A.140(6), as deemed necessary and appropriate." The minutes of the June 22 meeting reflect the following discussion:
Commissioner Campbell stated that "upon the recommendation of myself, since we now have a Chief Administrative Officer, I believe the City would run smother if the individual departmental responsibilities were withdrawn from all Commissioners". If the Commission does not agree with me, I think it is absolutely essential that the Commissioner responsible for the Police Department be changed. Commissioner then stated he would like to make a motion to eliminate the individual responsibility. Commissioner Joe Hood reminded Commissioner Campbell who was still presiding over the meeting, that he would need to step down from the chair to make a motion. Before stepping down Mayor Pro Tem, Lonnie Campbell asks for a motion to eliminate the individual responsibility of all Commissioners. Commissioner Hood asks Mr. Campbell if he would step down from the chair. Commissioner Springate declined to preside over the meeting. Commissioner Hood stated he would. Commissioner Campbell moved to eliminate the individual responsibility of all commissioners. Motion died for lack of a second. Commissioner Hood asks if there was another motion. Commissioner Campbell moved that the Commissioner for the Police Department be changed to Commissioner Springate, with Commissioner Royalty retaining supervision of the Parks and Sec. 8 Housing. Motion Seconded by Commissioner Springate. The change would be effective immediately. Commissioner Springate, Commissioner Campbell, and Commissioner Hood voted Aye. Commissioner Royalty voted No. Commissioner Hood stepped down from the chair and Commissioner Campbell took over presiding of the remainder of the meeting.
At the conclusion of this discussion, the meeting was adjourned. With the exception noted above relating to an unannounced discussion of the merits of Mr. Clay's open meetings complaint, the commissioners limited their discussion to the item listed on the agenda in the June 22 meeting notice.
Clearly, it was the method employed to accomplish the commissioners' objectives, rather than the discussions pertaining to those objectives, to which Mr. Clay objected. At the risk of oversimplification, we remind him that an open meetings appeal is not the appropriate forum in which to challenge those methods. Whether the means to their end was an ordinance or a resolution, the only item the commissioners discussed was the need to relieve themselves of their individual departmental responsibilities, or, alternatively, the need to relieve Commissioner Royalty of his individual responsibility for the police department. "The express purpose of the Open Meetings Act, " the Kentucky Supreme Court has declared, "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." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). It is the opinion of this office that the Harrodsburg City Commission complied with KRS 61.823(3) in identifying the item for discussion in the agenda of its June 22 special meeting notice, and in confining its discussion to that item in the course of the special meeting, with the notable exception of the discussion of Mr. Clay's complaint.
This position finds support in 97-OMD-43. In that decision, the complainant asserted that a special meeting notice failed to include the vote not to renew the school superintendent's contract, and therefore fell outside the item set forth in the agenda of what was to be discussed at the meeting. The meeting notice stated that "the purpose of the meeting will be to discuss renewal and/or action of the Superintendent's contract." Acknowledging that the Open Meetings Act contains no definition of the term "agenda, " and no explanation of what constitutes a satisfactory agenda, we recognized that, as defined in Webster's Third New International Dictionary (1966), an agenda is "a list or outline of things to be done, subjects to discussed, or business to be transacted." Based on this definition, the Attorney General concluded:
We believe that the agenda for this particular meeting clearly indicated that the school board intended to discuss the school superintendent's contract and to possibly take action relative to that contract. The school board's decision not to renew that contract was within the limits of what it could do pursuant to the agenda set forth in the notice. The agenda could not state that the board intended to fire the superintendent as the board can only take action in an open and public session of a school board meeting. Toannounce ahead of the meeting a course of action to be taken would have indicated that the board had collectively already made its decision .
97-OMD-43, p. 3 (emphasis added). By the same token, to announce before the June 22 special meeting that a resolution or ordinance would be adopted relieving Commissioner Royalty of certain of his duties would have been indicative of collective decision-making prior to the open meeting. We find that the special meeting notice properly listed the item to be discussed at the June 22 meeting, and that by restricting its discussion to this item, the Harrodsburg City Commission complied with the requirements of KRS 61.823(3).
Whether the Commission complied with the requirements of KRS 61.846(1) is a closer question. That statute provides that a person seeking to challenge public agency action under the Open Meetings Act:
shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Although Mr. Moore responded to Mr. Clay's complaint on behalf of the Commission, he did not cite a specific statute supporting the Commission's actions or briefly explain how the statute applies. This violation is to some extent mitigated by the Commission's inability to determine the precise nature of the allegations set forth in the complaint. Nevertheless, we again urge the Harrodsburg City Commission to review the cited provision to insure that future responses conform to 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 proceedings.