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 Cumberland High School Site Based Council violated the Open Meetings Act by failing to comply with the notice requirements set forth in KRS 61.823 prior to its June 2, June 18, and June 25, 2001, special meetings. For the reasons that follow, we find that the council's failure to include an agenda in the written notices of special meetings directed to the media organizations which had requested notification constituted a violation of the Act.
On July 5, 2001, David H. Dixon submitted a complaint to Superintendent Timothy Saylor 1 in which he alleged that "[t]he three special called meetings in June were not legal since no agenda was provided with the notice of the meeting . . . ." In support, he enclosed a copy of the June 21, 2001, written notice sent to the Tri-City News and the Harlan Daily Enterprise identifying the date, time, and place of the meeting, but containing no agenda. As a means of remedying the alleged violations, Mr. Dixon proposed that Superintendent Saylor direct "[Cumberland High School Principal Edward G.] Clem to void all meetings in June and have the new site-base-council take whatever action that they choose at the regular monthly meeting in July." Although Mr. Dixon identified his complaint as "a formal complaint under KRS 61.846," he received no written response, 2 prompting him to initiate an open meetings appeal.
In a letter directed to this office following commencement of Mr. Dixon's appeal, Superintendent Saylor advised:
Our office conducted an investigation into the allegation offered by Mr. Dixon. Please find copies of all related documents. There was an agenda item that caused concern as the records indicate. This will be rectified at the next Cumberland High School Site Base Decision Making Council meeting. As of this date, there have been no additional complaints.
Mr. Clem has an assigned District School Liaison that regularly attends the Cumberland High School SBDM meetings. In addition, our district has a SBDM Coordinator that serves as a resource person to principals and SBDM Councils.
In closing, Superintendent Saylor expressed a willingness to "take whatever steps . . . deem[ed] necessary to clear this matter."
To substantiate the council's position, Superintendent Saylor furnished this office with the following documents:
1. A July 11, 2001, memorandum from Anita Tolliver, SBDM District Coordinator, to Superintendent Saylor in which Ms. Tolliver states that she is "unable to confidently say that Mr. Clem has violated the regulation that an agenda shall be attached/included with the notice of a special called meeting";
2. A July 11, 2001, email transmission from Ms. Tolliver to Charles Edwards, Director of the Division of Instructional Leadership Development for the Kentucky Department of Education, asking about the propriety of the discussion of a "non-agenda" item at the council's June 18 special meeting, and Mr. Edwards' July 12 response;
3. The agenda for the council's June 2, 2001, meeting, dated June 2, and containing four items;
4. The minutes and sign-in-sheet 3 for the June 2 meeting;
5. The June 14, 2001, written notice sent to the Tri-City News and the Harlan Daily Enterprise, containing the date, time, and place of the meeting, but no agenda;
6. The agenda for the council's June 18, 2001, meeting, dated June 18, and containing eleven items;
7. The minutes and sign-in sheet for the June 18 meeting;
8. The agenda for the council's June 25, 2001, meeting, dated June 25, and containing eight items;
9. The minutes and sign-in sheet for the June 25 meeting.
Our review of these documents, along with the document Mr. Dixon provided to us, discloses a substantive violation of the Open Meetings Act consisting of the council's failure to include an agenda in the special meeting notices delivered to local media organizations. In addition, we find that the council's failure to respond in writing, and within three business days, constituted a procedural violation of the Act.
The Kentucky Court of Appeals has recognized that "the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. "
E. W. Scripps Company v. City of Louisville, Ky. App., 790 S.W.2d 450, 452 (1990). Echoing this view, the Kentucky Supreme Court has confirmed:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. 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), citing E. W. Scripps Co., above. "Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to 'open government openly arrived at.'" 99-OMD-146, p. 4, citing
Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N. J. Super. Ch. 1982).
To promote this goal, the Open Meetings Law establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. KRS 61.823 provides, in relevant part:
(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 language of the statute directing agency action is exact."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed. . . ." In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. 4
The failure to include an agenda of the items to be discussed in the written notices of the upcoming special meetings issued to the media is inconsistent with the principle of "maximiz[ing] notice of public meetings and actions," and represents less than strict compliance with the letter of the law. Ratliff at 923; see also 96-OMD-216. "Notice to the news media, " the Attorney General has observed, "is notice to the public," OAG 79-121, p. 2, and anything less than strict compliance is in derogation of "the public good. " Ratliff at 923. With the exception of the actual dates of the meetings noticed, the June 14, and June 21, 2001, written notices to the press are nearly identical, and both omit an agenda. Although agendas were prepared and, presumably, made available on June 2, June 18, and June 25, the dates on which the special meetings were held, this did not satisfy the requirement of advance notice to the public. Regardless of whether the newspapers elected to print the agenda, the council was statutorily obligated to furnish one, along with the date, time, and place of the special meeting, in the written notice thereof at least twenty-four hours before the meeting.
In closing, we note that the Cumberland High School Site-Based Council violated KRS 61.846(1), requiring agency response to an open meetings complaint in writing and within three business days, by failing to respond to Mr. Dixon's complaint. A letter directed to the Attorney General following initiation of an open meetings appeal does not satisfy the statutory requirement found at KRS 61.846(1).
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.
Footnotes
Footnotes
1 Mr. Dixon's complaint was technically misdirected. KRS 61.846(1) requires a complainant to submit a written open meetings complaint to "the presiding officer of the public agency suspected of the violation . . . ." The presiding officer of the Cumberland High School Site Based Council is Principal Edward G. Clem. Superintendent Saylor nevertheless proceeded to conduct an investigation into Mr. Dixon's allegations.
2 Superintendent Saylor does not contest this allegation.
3 This office has, in general, condemned the practice of requiring attendees to sign in as a condition of attendance at a public meeting. See, e.g., 98-OMD-44; 00-OMD-63; compare 01-OMD-23.
4 Neither Mr. Dixon nor the Cumberland High School Site-Based Council address the requirement of posting of the written notice, consisting of the date, time, and place of the meeting and the agenda, in a conspicuous place in the building where the meeting will occur and the building that houses the agency's headquarters at least 24 hours before the meeting.