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 Ludlow City Council violated the Open Meetings Act in its disposition of Christine Anderson's July 27, 2000, letter of complaint alleging improprieties in the council's decision to impose a 76% fire tax increase, and its decision to renew the Ludlow Fire Department's contract. Because Ms. Anderson's complaint failed to substantially conform to the requirements of KRS 61.846(1), we do not find that the council's disposition of her letter of complaint violated the Act. Nor do we reach the merits of her allegations concerning the council's conduct given the procedural irregularities in the submission of her complaint. Nevertheless, we find that there is no impediment to Ms. Anderson filing a new, and procedurally correct, complaint.
In her July 27 letter of complaint, addressed to "Wofford, Cloud, Redd, Hatter, Brooks," Ms. Anderson declared:
YOU RENEWED THE FIRE DEPT. CONTRACT AND INCREASED THE FIRE TAX BY APPROXIMATELY 76%. THIS WAS DONE AT ANOTHER ONE OF YOUR "SPECIAL MEETINGS" IN AN IMPROMPTU EFFORT TO KEEP THE PUBLIC FROM ATTENDING. BY 7/13/00 @ 11 AM, YOU HAD REACHED THIS AGREEMENT AND DECIDED YOU WOULDN'T NEED TO DISCUSS THE CONTRACT AT THE 7 PM COUNCIL MEETING THAT EVENING, 7/13/00.
YOU DID ALL THIS WITHOUT PUTTING AN AD IN THE NEWSPAPER TO ENCOURAGE OPEN BIDDING FROM OTHER FIRE DEPT'S.
WELL GUESS WHAT. YOUR FIRE DEPT. CONTRACT AND INCREASED TAX ARE NULL AND VOID.
Ms. Anderson apparently intended this letter to constitute a complaint within the scope and meaning of KRS 61.046(1), because, having failed to receive a response from the council, on August 3, 2000, she initiated an appeal to the Attorney General.
In a letter directed to this office following commencement of Ms. Anderson's appeal, Ludlow City Attorney Peter Summe explained that the city did not formerly respond because Ms. Anderson's "alleged complaint . . . failed to follow the formalities imposed by KRS 61.846 . . . ." Continuing, he observed:
KRS 61.846 is explicit in setting forth the proper procedure for enforcement of the open meetings laws. It states very clearly that if a person chooses to enforce KRS 61.805 to 61.850, she 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.
Because Ms. Anderson did not comply with the statute, Mr. Summe concluded, the city was not obligated to issue a response. We agree.
KRS 61.846(1) provides, in relevant part,
The person 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. . . . 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.
To the extent that Ms. Anderson's request was not directed to Mayor Tom Stacy, but instead to "Wofford, Cloud, Redd, Hatter, Brooks," it did not conform to the requirements of KRS 61.846(1). Ms. Anderson's belief that Mayor Stacy did not participate in the alleged impropriety did not relieve her of the legal requirement imposed by the statute. Moreover, her assertion that the "fire department contract and increased tax are null and void" cannot be characterized as a proposed remedial measure. While this office has recognized that the rules of procedure governing the Open Records and Open Meetings Act "should be relaxed to permit the greatest possible access to this forum, and that a rule of substantial compliance should generally be applied," 92-ORD-1449, p. 2, we must agree with Mr. Summe that Ms. Anderson's complaint did not substantially comply with KRS 61.846(1). The procedural requirements of both Acts "are not mere formalities, but are an essential part of the prompt and orderly processing of an appeal." 93-ORD-125, p. 5.
This being the case, Ms. Anderson's appeal is not ripe for review by the Attorney General. See, 40 KAR 1:030 Section 1 ("The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2) requiring the submission of a written complaint to the public agency and the public agency's written response"); 96-OMD-11 (Attorney General has no authority to entertain an appeal, and address the issues raised, when the appeal was not received within the sixty day statutory time frame found at KRS 61.846(1)). We hasten to note that nothing in the statutes precludes Ms. Anderson from submitting a new complaint to Mayor Stacy in which she restates the circumstances constituting the alleged violation, and proposes remedial measures . Upon presentation of a complaint that conforms to KRS 61.846(1), the burden will shift to the Ludlow City Council to respond to her allegations. If, in her view, the council fails to provide a satisfactory explanation for its actions, Ms. Anderson may initiate a new open meetings appeal to the Attorney General. Dismissal of the appeal before us does not prejudice her right to file subsequent appeals.
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.