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 Paintsville City Council violated the Open Meetings Act at its September 18, 2001, special meeting by including agenda items on its notice of special meeting that included "discussion of old business, " "discussion of new business, " "open to floor, " and "open to counsel." Although there appear to be no prior open meetings decisions directly addressing this issue, we find that the language of KRS 61.823(3), coupled with the statement of legislative policy codified at KRS 61.800, 1 and the Kentucky Supreme Court's declaration that "[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions" mandate special meetings agendas that give fair notice of the particular topics to be discussed or acted upon.
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Accordingly, we find that the notice of the Paintsville City Council's September 18 special meeting was deficient.
On September 20, 2001, Big Sandy News reporter Chris McDavid submitted a written complaint to Mayor Robin Cooper in which he alleged that "discussions and actions at the Sept. 18, 2001, special meeting of the Paintsville City Council which were held under agenda items discussion of old business, discussion of new business, open to council and open to the floor" violated the provision of the Open Meetings Act "limit[ing]discussions or actions during special meetings to items listed on the agenda. " As a means of remedying this violation, Mr. McDavid proposed that "those discussions be held and actions taken during a proper, legal meeting of the council."
On September 21, 2001, Mayor Cooper responded to Mr. McDavid's complaint. Mayor Cooper stated that the agenda items to which Mr. McDavid objected were "appropriate agenda items for this type of meeting and they meet the requirements of the [Open Meetings Act] ." He explained:
In my research of the Kentucky Revised Statutes concerning the Open Meetings Law, I have been unable to find any references to the specificity of the agenda. I have also been unsuccessful in locating any opinion of the Attorney General of Kentucky which would support your claim that the agenda items of the above mentioned meeting were "vague" and "uninformative."
I would point out that although by law, this meeting of the Paintsville City Council, was a "special" meeting by the fact that it was rescheduled, it was our regular monthly meeting. It was properly advertised and the agenda was posted and distributed in a timely manner as required by statute. All of the local media organizations had reporters present and as is the usual case, it was recorded by our local television for replay the next night.
In closing, Mayor Cooper indicated that he is "in full support of every section of the Open Meetings Law and . . . have always made every effort to adhere to . . . it . . .," expressing the belief "that the intent of the . . . Law is to assure that the people's business is conducted in public and that all citizens are duly notified and informed of what is going to be discussed or taken into consideration for legislative action at a meeting of a public agency. " This appeal followed.
In a supplemental response directed to this office following commencement of Mr. McDavid's appeal, Paintsville City Attorney P. Franklin Heaberlin elaborated on the City Council's position. Mr. Heaberlin advised:
Due to a scheduling conflict, the regular monthly meeting of the City of Paintsville was rescheduled from September 11, 2001 to September 18, 2001. This rescheduling was announced at the August City Council meeting and this announcement was carried on local access television, as well as being made to all media in attendance at the August meeting. The City of Paintsville was in compliance with the provisions of KRS 61.823 regarding special meetings: the Mayor called the special meeting (KRS 61.823(2)); the City Clerk provided written notice of the special meeting consisting of the date, time and place of the special meeting, as well as the agenda, and a written notice was posted in a conspicuous place at the City building and at the Recreation Center where City Council meetings are held. KRS 61.823(4)(b). It should be noted that, to the undersigned's understanding, The Big Sandy News had not filed a written request to receive notice of special meetings pursuant to KRS 61.823(4) prior to September 18, 2001.
While the meeting of September 18, 2001 was technically a special called meeting, all of those in attendance were aware that it was the monthly meeting for the City of Paintsville. There were numerous members of the public at the meeting and members of the media representing radio, television and newspapers were also in attendance. The City of Paintsville only has one City Council meeting a month and the notice of the September meeting was certainly in compliance with the purpose and spirit of the open meetings law.
Mr. McDavid takes exception to agenda items regarding (1) old business; (2) new business; (3) open to floor; and (4) open to council. I would point out that any discussions held under these agenda items did not result in any action being taken on said items other than under old business, the Mayor mentioned that he was negotiating with the U. S. Post Office for the purchase of a building and asked for Council's consent to make an offer of a certain amount. It should be noted that this was, in essence, redundant in that the Council had already given the Mayor authority to negotiate with the U. S. Post Office at an earlier, regularly scheduled City Council meeting. No action was taken regarding any other discussion held under the agenda items to which Mr. McDavid objects. In addition, the agenda items "open to Council" and "open to floor" are on every agenda of a City Council meeting. Refusal to open matters for discussion from the floor, which is where the public is heard from, is obviously contrary to the purpose and spirit of the open meetings law.
Mr. Heaberlin reaffirmed that the City Council had been unable to locate any controlling authority on this issue. He concluded his supplemental response with a request for an advisory opinion regarding the places where City Council meetings may be held.
Our review of past advisory open meetings opinions and legally binding Open Meetings decisions 2 confirms the Paintsville City Council's belief that no existing authority directly addresses the issue before us. Nevertheless, we find that, consistent with the goal of maximizing notice to the public and the requirements of KRS 61.823(3), each agenda item contained in the notice of a special meeting must be sufficiently definite to permit the public to fairly understand the purpose or purposes for which the special meeting is to be held.
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 Act establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. Among these requirements, 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. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
In construing this provision, the Attorney General has recognized that although "[t]here is no definition of the term 'agenda' and no explanation as to what constitutes a satisfactory agenda" in the Act, "'agenda' is defined in part in Webster's Third New International Dictionary (1966) as 'a list or outline of things to be done, subjects to be discussed, or business to be transacted.'" 97-OMD-43, p. 3. This definition, in our view, contemplates sufficient specificity in the description of the items to be discussed to insure fair notice to the public. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as "old business, " "new business, " "open to floor, " and "open to council." Further, such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
On more than one occasion, the Attorney General has observed:
There are only two kinds of meetings-regular meetings and special meetings.
Regular meetings are held at specified times and places which are convenient to the public. Public agencies must provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that particular agency. [KRS 61.820.]
Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)(a), there are also posting requirements (KRS 61.823(4)(b). These requirements must be met each time for each called special meeting.
94-OMD-50, p. 4. "When the public agency deviates from its regular meeting schedule and reschedules that regular meeting, " we have further observed, "the rescheduled meeting becomes a special meeting. " 92-OMD-1473, p. 2; 92-OMD-1677; 99-OMD-153. The Paintsville City Council acknowledges that its rescheduled September 11 regular meeting was a special meeting, but suggests that the requirements applicable thereto should be relaxed because "all of those in attendance were aware that it was the monthly meeting for the City of Paintsville," because the discussions held under the objectionable agenda items were largely redundant, and because no action was taken as a result of these discussions.
The Open Meetings Act does not recognize a third category of public meetings consisting of rescheduled regular meetings. Nor does it permit a relaxation of the requirements for such meetings. "The public has a right to expect a public agency . . .to follow its regular schedule or to call special meetings following the required notice, delivery, and posting provisions pursuant to KRS 61.823," 92-OMD-1677, p. 3. Moreover, the public has a right to expect strict compliance with the requirement that discussions and actions at the meeting be limited to items listed on the agenda contained in the notice. Because no agenda is required for a regular meeting under KRS 61.820 , public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings. Public agencies do not enjoy the same freedom to discuss, or act upon, matters entrusted to them in a special meeting, but are, as noted, restricted to discussion of, or action on, agenda items. We believe that the practice of including open-ended agenda items like old and new business, or open to counsel and floor, is inconsistent with the natural and harmonious reading of KRS 61.823(3), as well as the statement of legislative policy codified at KRS 61.800, and the goal of maximizing notice to the public.
Respectfully, we must decline the Paintsville City Council's request for an advisory opinion regarding the places where city council meetings may be held. Pursuant to KRS 61.846(2),the Attorney General plays a quasi-adjudicative role in open meetings appeals. Therefore, we cannot respond to open meetings questions unless they are presented in a formal appeal. An Attorney General's open meetings decision has the force and effect of law. KRS 61.846(4)(b). The same considerations that prohibit courts from rendering advisory opinions compel us to adopt this policy.
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.
Chris McDavidP. O. Box 1447Paintsville, KY 41240
Robin CooperMayorCity of PaintsvilleP.O. Box 1588Paintsville, KY 41240
P. Franklin HeaberlinFitzpatrick, Osborne & Sturgill112 North Lake DriveP. O. Box 3385Prestonsburg, KY 41653
Footnotes
Footnotes
1 KRS 61.800 provides:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
2 Prior to July, 1992, the Attorney General was not empowered to adjudicate disputes presented to him in open meetings appeals. After that date, KRS 61.846(2) reposed this duty upon him.