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 Kentucky Access Subcommittee of the Department of Insurance's Health Insurance Advisory Committee violated the Open Meetings Act by failing to comply with KRS 61.823 prior to its November 3, 2000, special meeting. For the reasons that follow, we conclude that the committee violated the Act.
In a series of letters directed to committee chairman Roy Mattingly between November 2 and November 17, 2000, Mr. Powell complained of the committee's noncompliance with the Open Meetings Act, and in particular, KRS 61.823. He alleged that the committee's November 13, 2000, meeting was rescheduled to November 3, 2000, without "timely and adequate notice . . . to all committee members and to other interested parties, including the media. " He also identified as a violation of the Act the committee's failure to provide a written agenda of the matters to be discussed. As a means of remedying these violations, Mr. Powell proposed that the Kentucky Access Subcommittee conduct another special meeting, in accordance with the requirements found at KRS 61.823, including "written and posted agenda and notice to the media and interested consumer groups, to consider those matters that were discussed at the improperly called and conducted special session on November 3, 2000." In addition, he proposed that any actions taken at the November 3 meeting "be declared null and void."
In a response to the second of Mr. Powell's three complaints, Department of Insurance Staff Attorney Elizabeth A. Johnson denied these allegations. She explained that "every effort was made to notify interested parties of the change of date." Continuing, she observed:
As you are aware, the Department is working under a strict deadline to have Kentucky Access operating by January 1, 2001. Because January 1, 2001 is fast approaching, the Department felt it necessary to reschedule the Kentucky Access Subcommittee from November 13, 2000, to November 3, 2000.
The Department made every reasonable effort to notify the parties of the November 3, 2000, meeting. Notice was given at a prior public meeting as well as posting a notice on the Department's web page at www.doi.state.ky.us. Roy Mattingly, Chair of the Kentucky Access Subcommittee, conducted the November 3, 2000, meeting in an open and public manner. Additionally, at the beginning of the meeting, he clearly articulated the reasons for the meeting.
Pursuant to KRS 61.823, the Department made every reasonable effort to notify interested parties of the November 3, 2000, emergency meeting. Therefore, there has been no violation of the Kentucky's open meetings law.
On this basis, the Department refused to implement the proposed remedial measures.
In a supplemental response directed to this office following commencement of Mr. Powell's appeal, Ms. Johnson elaborated on the Department's position. She explained:
With the passage of House Bill ("HB") 517 (now codified in KRS Chapter 304 subtitle 17B), the General Assembly created a health insurance pool for Kentucky, named Kentucky Access. Pursuant to KRS 304.17B-007(12), the Department must "issue health benefit plans January 1, 2001, or thereafter, in accordance with the requirements of KRS 304.17B-001 to 304.17B-031." KRS 304.17B-019 requires Kentucky Access to offer at least three health benefit plans to its members. The Health Insurance Advisory Council ("HIAC") charged two working groups with the duty of recommending health benefit plans for Kentucky Access. The two working groups are the Standard Health Benefit Plan Subcommittee and the Kentucky Access Subcommittee ("KYAS"). These subcommittees make recommendations to HIAC, which in turn makes a recommendation to the Commissioner of Insurance, serving as chair of HIAC. (See KRS 304.17A-080). After considering the recommendations, and in compliance with the law, the Commissioner makes the final decision as to what plans are to be offered by Kentucky Access.
The Standard Plan subcommittee met three times in October 2000 in order to discuss its recommendation for Kentucky Access health plans. As reflected in HIAC's November 1, 2000, minutes of meeting, the Standard Plan subcommittee made its plan recommendations to HIAC. With only two months remaining before Kentucky Access statutorily had to be operating and because time was of the essence, it was decided to change KYAS's first meeting from November 13, 2000, to November 3, 2000. As reflected in the minutes of the November 1, 2000, meeting, the new date, time, and place of the KYAS were announced at the HIAC meeting. Additionally, the date, time, and place of the KYAS were posted on the Kentucky Department of Insurance's web site at www.doi.state.ky.us. The notice at the HIAC meeting and the notice on the Department's web site were provided two days in advance of the rescheduled meeting.
Ms. Johnson noted that the November 3, 2000, KYAS was held as scheduled, that it was open to the public, and that Mr. Powell attended the meeting.
Relying on KRS 61.823(5), Ms. Johnson characterized the November 3 meeting as an emergency meeting, and reaffirmed that the Department "made every reasonable effort, under strict deadlines, to comply with the letter and intent of the Open Meetings law." She added that the Department's Communications Director notified a Herald-Leader health reporter of the meeting, but the reporter elected not to attend. With reference to the requirements for conducting an emergency meeting, Ms. Johnson concluded that Chairman Mattingly "explained the reason for the rescheduled meeting at the beginning of the KYAS meeting," and that "besides introducing the new members of the subcommittee, the subcommittee limited its discussion and actions solely to the topic of health benefit plans for Kentucky Access." While we believe that the Department advances each of their arguments in good faith, we do not find the arguments persuasive. We therefore conclude that the Kentucky Access Subcommittee violated the Open Meetings Act at its November 3 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.
In a recent open meetings decision, the Attorney General construed this provision. We observed:
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 .
00-OMD-80, p. 6.
Based upon these principles, in 00-OMD-80 we held that eleventh hour discussions relating to a request that a bill be drafted to change the name of Somerset Community College prior to the last day for filing a bill in the General Assembly could not be properly characterized as an emergency. Acknowledging that the matters with which the Kentucky Access Subcommittee is entrusted are of great importance to the Commonwealth, and that its actions are driven by a sense of urgency, we nevertheless cannot accept the premise that an emergency existed on November 3, 2000, of the magnitude contemplated by the statute that justified a suspension of the normal rules of proceeding, and necessitated reasonable, as opposed to strict, compliance with the requirements for a special meeting set forth at KRS 61.823(2), (3), and (4).
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.
(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.
Underlying each of these requirements is the clearly articulated goal of maximizing notice. "Failure to comply with the strict letter of the law," the Kentucky Supreme Court has noted, "violates the public good. " Ratliff at 923.
While we see nothing wrong with the Department's public announcement of the change in the scheduling of the subcommittee's meeting at the November 1, 2000, Health Insurance Advisory Council Meeting, or in its decision to post the scheduling change on its web site, these steps should have been taken in addition to, rather than in lieu of, the requirements found at KRS 61.823(2), (3), and (4). The record is devoid of proof that the subcommittee complied with these requirements by delivering written notice, consisting of the date, time, and place of the November 3 special meeting, and the agenda for the meeting, personally, by fax, or by mail, to each member of the public agency, as well as each media organization that had requested notice, at least twenty-four hours before the special meeting. Further, the record is devoid of proof that the subcommittee posted written notice, at least twenty-four hours before the November 3 special meeting, in a conspicuous place in the building where the meeting took place, and in the building that houses its headquarters. Since no agenda was published, we cannot ascertain whether the topics discussed were properly restricted. The Department posted the meeting change on its web site, and publicly announced the change, forty-eight hours before the meeting, thus undermining its argument that an emergency prevented compliance with the requirements for conducting a special meeting. Accordingly, we must conclude that the Kentucky Access Subcommittee violated KRS 61.823 at its November 3, 2000, special meeting.
Nevertheless, we note that the Kentucky Access Subcommittee is not obligated, under the Open Meetings Act, to provide written notice of special meetings to "interested parties. " Again invoking the Supreme Court's language in Ratliff , above, relative to maximizing notice of public meetings, in 98-OMD-125 this office expressly stated that "there is no requirement in the . . . Act that a public agency provide individual notice of its regular or special meetings, or to persons affected by the actions to be taken at those meetings, or persons with a particular interest in the subject of the meetings." 98-OMD-125, p. 5. Notice to the media is deemed to constitute adequate notice to the public at large. Therefore, we find no error in the subcommittee's failure to provide written notice to "interested parties" not identified in the 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.