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 Child Support Guidelines Review Commission violated the Open Meetings Act by failing to comply with the requirements for special meetings, codified at KRS 61.823, prior to and in the course of its June 19, and July 24, 2001, special meetings, and in adopting and implementing certain parliamentary procedures. For the reasons that follow, we conclude that the Commission did not comply with KRS 61.823, and that, depending upon how they are implemented, certain of its parliamentary procedures may be deficient. We proceed under KRS 61.846(3)(a), the Commission having agreed to remedy some of the violations alleged, but the complainant believing the Commission's "efforts in this regard are inadequate."
On July 2, 2001, Ann M. Swango submitted a complaint to Natalie S. Wilson, Chairperson of the Kentucky Child Support Guidelines Review Commission, in which she alleged three violations of the Open Meetings Act. She complained:
1. that the Commission violated KRS 61.823(3) at its June 19 special meeting by discussing items not listed on the agenda;
2. that Section A.1. of the Commission's "Rules of Order for Commission Meetings," Subpart II, Parliamentary Procedures for Meetings, is deficient because it identifies only by date, and not by time and place, the Commission's scheduled, regular meeting; and
3. that Section C.2. of the "Rules of Order" is deficient because it authorizes revision of the agenda for a meeting in the course of the meeting.
As a means of remedying these violations, Ms. Swango proposed that at its July special meeting, the Commission place on its agenda "all topics covered between 6:30 pm and 7:26 pm on July 19, 2001," and that it revisit the issue of its parliamentary procedures at that meeting.
On July 6, Ms. Wilson responded to Ms. Swango's complaint on behalf of the Commission. With reference to her allegations concerning discussion of items not listed on the agenda, Ms. Wilson observed:
The . . . . discussion was educational regarding issues previously discussed by the Commission and was intended to help the new members understand the background of the task they were to undertake. Although the Commission took no formal action regarding the materials discussed on June 19th, these same materials will be made available for discussion at subsequent meetings prior to any action by the Commission.
Ms. Wilson also agreed to place Professor Louise Graham on the agenda at the July meeting.
Ms. Wilson defended the newly adopted parliamentary procedures, noting that "KRS 61.820 does not require the commission to hold only regular meetings; therefore, a procedure which provides for a special meeting is not a violation of KRS 61.820." With reference to Section C.2., Ms. Wilson noted that the "procedure applies to the revision of an agenda at a regular meeting as well as revision of the order in which matters on the agenda may be considered at a special meeting, no part of which, in my opinion, violates the provisions of KRS 61.823."
Following the July meeting Ms. Swango submitted a second open meetings complaint to Ms. Wilson, focusing on alleged deficiencies in the notice of the meeting. She complained that the Commission "failed to take necessary steps to assure that the media organizations would be notified of the July 24 meeting," and that such notice as was given failed to include an agenda. She requested that the Commission remedy these violations by "re-creat[ing] the meeting of July 24, 2001, at the next special meeting scheduled by the Commission, and comply[ing] fully with KRS 61.823 by making the date, time, place, and agenda of the July 24 meeting available to media organizations and others who have requested notification . . . within the time required by law . . . ."
In a letter dated August 16, Ms. Wilson responded to Ms. Swango's allegation that the Commission failed to insure proper notice to the media. Ms. Wilson observed:
Our Commission records show that Mr. Jennings 1 was notified of that meeting by e-mail from our office on June 25th and our records show that there was considerable dissemination of the meeting notice. Patti Smith-Glover reports numerous telephone inquiries from people who had questions about the upcoming public hearing.
Ms. Wilson acknowledged that, "due to staff changes and considerable confusion as to the time frame for the agenda, " the notice issued did not contain an agenda. Shortly after receiving Ms. Wilson's response, Ms. Swango initiated this appeal.
In a supplemental response directed to this office following commencement of the appeal, Ms. Wilson elaborated on the Commission's position. Ms. Wilson attached a copy of an August 29 email transmission from Mike Jennings confirming receipt of a June 25 email transmission from Joyce Metts, Internal Policy Analyst, Division of Policy Development, that contained notice of the Commission's public hearing and a request that it be made available to the press. The emails further confirm that Mr. Jennings directed Patricia Boler to fax the notice to the Frankfort media, and that she did so on June 26.
Although we are cognizant that the unique statutory charge of the Child Support Guidelines Review Commission places it among "those public agencies that do not conduct the public's business on a sufficiently regular basis to justify regular meeting, " 99-OMD-166, p. 6, we believe that it must treat all of its meetings as special meetings 2 and comply with the notice requirements set forth at KRS 61.823. Our review of the record on appeal discloses that the Commission did not comply with KRS 61.823, and therefore violated the Open Meetings Act.
Attorney General's review of Commission's actions
Before proceeding to the issues on appeal, we address Ms. Swango's request that the Attorney General "release himself from any non-statutory obligation that may conflict with [his] ability to render an open meetings opinion . . . ." Noting that the Attorney General is "under contract to provide legal advice regarding the child support program in exchange for monetary rewards in the form of IV-D funds through Master Agreement # M-00147107 between the Child Support Division and the Attorney General," she expressed concern about an ethical conflict of interest.
KRS 61.846(2) assigns to the Attorney General the role of dispute mediator in an open meetings appeal. In construing the analogous provision in the Open Records Act, the Attorney General has observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
Also, if this matter is appealed to the appropriate circuit court- -which could have been done without requesting the opinion- -that court will make a de novo review of the evidence. [Citations omitted.] Therefore this opinion will not prejudice the requesting party in any way.
OAG 92-10, p. 5, citing OAG 91-35, p. 3; see also OAG 78-639; 99-ORD-36; 99-ORD-121. We believe that the logic of these decisions extends to open meetings appeals, and, as in those decisions, "we . . . endeavor to research the law thoroughly and to apply that law to the facts presented without favoritism or bias." OAG 91-35, p. 4.
KRS 61.823(3) and discussion of items not listed on agenda
Ms. Swango first alleges that the Commission failed to comply with KRS 61.823(3) at its June 19 meeting by discussing various items not listed on the agenda. Ms. Wilson responded that the Commission's discussion "was educational, " related to "issues previously discussed by the Commission," and "was intended to help the new members understand the background of the task they were to undertake." Further, she noted that no formal action was taken as a result of the discussion.
KRS 61.823(3) provides:
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. Discussion and action at the meeting shall be limited to items listed on the agenda in the notice.
"The express purpose of the Open Meetings Act, " the Kentucky Supreme Court has declared, "is to maximize notice of public meetings and action [, 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 Commission violated KRS 61.823(3) in failing to confine its discussions at the June 19 special meeting to the items listed on the agenda.
The discussion that occurred at the close of the June 19 special meeting of the Child Support Guidelines Review Commission exceeded the scope of any of the items listed on the agenda for that meeting, and was therefore improper. KRS 61.823(3) does not contain an exception for educational discussions, or discussion of items previously discussed. The fact that no formal action was taken as a consequence of the discussion does not alter our conclusion.
KRS 61.820 and provision for regular meeting
Ms. Swango also complains about the Commission's decision to adopt parliamentary procedures that do not conform to the requirements of KRS 61.820. Specifically, she objects to the omission of a stated time and place from that portion of the Rules of Order for Commission Meetings that establishes a regular Commission meeting on "the third Tuesday in April of each calendar year." Ms. Wilson responded that KRS 61.820 does not require the Commission to conduct only regular meetings, and that Section A.2., establishing procedures for a special meeting, is therefore not a violation of KRS 61.820.
While we agree with Ms. Wilson that KRS 61.820 cannot be construed to require the Commission to conduct only regular meetings, 3 we believe that, consistent with the goal of maximizing notice to the public, the Commission must identify its regular meeting by time and place in addition to date. This is implicit in the concept of adequate notice to the public.
We hasten to note, however, that it is not altogether clear that Section A.1. of Subpart II of the "Parliamentary Procedures for Review" can be equated to, or is meant to serve as, the Commission's schedule of regular meetings. If a separate document exists that is intended to serve as that schedule, and if the document identifies the regular meeting by time and place, as well as date, and if the document is available to the public, it is sufficient under the Act, and no violation of KRS 61.820 can be found. It is, of course, incumbent on the Commission to produce this schedule upon request.
KRS 61.823(3) and revision of agenda during special meeting
The final allegation in Ms. Swango's July 2 complaint relates to Section C.2. of Subpart II of the Commission's parliamentary procedures which states that "[a]n agenda for a meeting may be revised at the meeting upon a two-thirds vote of the quorum of members." Ms. Swango objects that this provision is inconsistent with KRS 61.823(4(a) and (b) requiring delivery and posting of notice that includes the date, time, and place of the meeting, and the agenda, at least twenty-four hours before the special meeting. Ms. Wilson responded that the procedure for revising the agenda applies to regular meeting as well as "revision of the order in which matters on the agenda may be considered at a special meeting. " If the procedure , as it relates to special meetings, applies to revising the order of items on the agenda, and not to adding items, it is permissible. KRS 61.823(3), when read in conjunction with KRS 61.823(4)(a) and (b), cannot be construed to permit a public agency to revise the agenda for a special meeting, in the course of the meeting, by adding agenda items.
As noted above, KRS 61.823 requires public agencies to provide written notice of special meetings that consists of the date, time, and place of the special meeting and the agenda, and to limit discussion at the meeting to those items listed on the agenda in the notice. KRS 61.823(4)(a) and (b) require delivery and posting of the notice at least twenty-four hours before the meeting. We believe that it is inconsistent with the natural and harmonious reading of the Act to permit the addition of agenda items in the course of the meeting.
We again hasten to note that the statute does not prohibit revision of regular meeting agendas, since no agenda is required for a regular meeting, and that discussions at regular meetings are not restricted to items listed on the agenda. Nor do we believe the statute can be read so narrowly as to prohibit a public agency from revising the order of the agenda items to be discussed at a special meeting. KRS 61.823(3) does not place such severe restrictions on agency action, and we believe revision of the order of agenda items is permissible. This position reflects the simple reality that some flexibility must exist to accommodate agency members and meeting participants, and the demands of administrative efficiency. However, Section C.2. must be narrowly construed and implemented.
KRS 61.823(3) and (4) and July 24 meeting notice
We turn now to Ms. Swango's second open meetings complaint, dated August 15, 2001, in which she focuses on alleged deficiencies in the special meeting notice for the Commission's July 24 meeting. She complains that the Commission "failed to take necessary steps to assure that the media organizations would be properly notified of the July 24 meeting," and that such notice as was given failed to include an agenda. Ms. Wilson responded that Commission records indicate that on June 26, notice was disseminated by fax to Frankfort media organizations by Patricia Boler at the request of Joyce Metts through Mike Jennings. In her supplemental response, Ms. Wilson included a copy of a series of email transmissions confirming dissemination of the notice. She did not include a copy of the notice itself. However, Ms. Wilson acknowledged that the revised agenda for the special meeting was not distributed at least twenty-four hours before the meeting, explaining that she was "not aware at that time that there was a time requirement," and that she did not finalize the agenda until shortly before the meeting.
As this office recently observed, "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 [and the members of the public agency] 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." 01-OMD-135, p. 5. The record before us does not support the Commission's contention that notice of the special meeting was correctly made. There is no evidence that the notice contained an agenda, that it was delivered to Commission members, 4 or that it was posted in a conspicuous place in the building that houses its headquarters and in the building where the meeting was held. If any of these requirements were not met, the Commission violated KRS 61.823.
The question of whether the notice of special meeting was timely made appears to be resolved by Ms. Wilson's assertion that the Cabinet issued notice on June 26, which is confirmed by the printout of email transmissions with which she furnished us. While notice that was calculated to be delivered closer in time to the date of the meeting, but not less than twenty-four hours before it, might have been preferred, we do not find that the June 26 notice of the July 24 meeting was deficient. To this extent, Ms. Swango's complaint is without merit.
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.
Ann M. SwangoP.O. Box 534Florence, KY 41022-0534
Natalie S. WilsonGess, Mattingly & Atchison201 West Short StreetLexington, KY 40507-1269
Mike NoyesOffice of the Attorney General1024 Capital Center DriveFrankfort, KY 40601
Footnotes
Footnotes
1 Mike Jennings, Executive Director, Office of Communications, Cabinet for Families and Children.
2 With the exception of the regular meeting established in its parliamentary procedures at Subpart II, Section A.1.
3 See, for example, 99-OMD-166, in which the Attorney General recognized that the phrase "or by whatever means may be required for the conduct of public business of that public agency, " that appears in KRS 61.820, invests an agency "with some latitude in determining whether to meet on a regular or as needed basis." 99-OMD-166, p. 6.
4 The Act does not require individual notice to "interested parties." Notice to the media is deemed to constitute adequate notice to the public. OAG 79-121, cited in 01-OMD-135. Thus, at page 5 of 98-OMD-125 we held that "there is no requirement in the Open Meetings Act that a public agency provide individual notice of its regular or special meetings to persons affected by the actions to be taken at those meetings or persons with a particular interest in the subject of the meeting."