Request By:
Susan H. Goddard
1300 Duncan Road
Frankfort, KY 40601Forrest Banta
Frankfort/Franklin County Planning and Zoning Commission
Franklin County Courthouse Annex
315 W. Second Street, Rm. 305
Frankfort, KY 40601Edwin A. Logan
Logan & Gaines
100 E. Main Street
Frankfort, KY 40601
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 Frankfort-Franklin County Planning and Zoning Commission violated the Open Meetings Act by failing to give adequate notice of the work session that preceded its December 12, 2001 regular meeting and by failing to respond to the open meetings complaint alleging this violation. For the reasons that follow, we find that the notice given by the Commission was only partially consistent with the requirements of KRS 61.823, and that the Commission violated KRS 61.846(1) in failing to respond to the complaint.
On December 21, 2001, Susan H. Goddard submitted a written complaint to Commission Chairman Forrest Banta in which she alleged that a work session that preceded the Commission's December 12 regular meeting was not properly noticed to the public. It was Ms. Goddard's understanding that several items listed in the regular meeting agenda were discussed and approved in this work session, frustrating the public's opportunity "to hear the agenda items that they had come for." As a means of remedying the alleged violation, Ms. Goddard proposed that the Commission "cite the statute . . . that gives [it] the authority to call the work session but not notify the public," and provide her with copies "of the minutes of the 'earlier session' and [the Commission's] basis for approval ...." Having received no response to her complaint, Ms. Goddard initiated this appeal on January 3, 2002.
In a response directed to this office following commencement of Ms. Goddard's appeal, Commission attorney Edwin A. Logan defended his client's action. He explained that the Commission conducted a regular monthly meeting on December 12, "pursuant to appropriate legal notice, " in the council chambers of City Hall. A typed agenda was made available to the public before the hearing. With reference to the alleged violation, Mr. Logan observed:
After receiving reports of various officers and committees, a motion was made to place five (5) items on the agenda under new business on a consent agenda to be considered at the same time. Items that are ministerial in nature and that have received staff approval may be placed on a consent agenda for the approval of the Planning Commission. Item No. 5 under the agenda was the approval of a preliminary subdivision plat for property located at the southwest quadrant of I-64 and U.S. 60, Versailles Road. This item was one of the items considered on the consent agenda. A motion was made, seconded, and approved unanimously. The five (5) items were then all considered by separate motion for approval in accordance with the staff report recommendations. This motion was also properly seconded and received a unanimous vote of approval
The Chairman of the Planning Commission then announced to those in attendance that these five (5) items were placed on a consent agenda and were approved. He advised that if the parties present were not interested in other items that they were free to leave. At that time, individuals concerned about another of the items on the consent agenda requested permission to approach the bench to ask the steps or procedures for the next Commission consideration. This was during the open meeting and recorded by stenographer and television. These parties had no objection to the actions taken by the Commission and made no complaint about the procedure employed.
The complainant then requested that she be allowed to approach the bench after the aforementioned group departed. Assuming that the complainant arrived late, the chairman notified her of the action taken a few moments earlier on the consent agenda. All items were properly considered as advertised and there was no other session or meeting as alleged by the complainant.
Continuing, Mr. Logan acknowledged that a work session did precede the Commission's regular meeting, "but no items on the regular agenda were considered and no action was taken at the work session. " He indicated that the work session was noticed to the media, and provided this office with a copy of the notice. The only topic discussed in the work session, Mr. Logan explained, was future plans for state building locations in downtown Frankfort. He speculated that Ms. Goddard "erroneously believes that the work session dealt with Planning Commission items," and asserted that the Commission did not violate the Open Meetings Act at its December 12 regular meeting. We find that although Ms. Goddard was in error in her belief that the Commission acted on regular meeting agenda items during the work session that preceded the regular meeting, she was correct in her objections to the sufficiency of the notice for that work session and the Commission's failure to respond to her open meetings complaint.
We begin by noting that the December 12, 2001 regular meeting of the Frankfort-Franklin County Planning and Zoning Commission complied, in all material respects, with the requirements of the Open Meetings Act. Neither notice of, or an agenda for, such meetings are required under the Act as long as the Commission has "provide[d] for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of [its] business . . . ." KRS 61.820; construed in 01-OMD-175 and 01-OMD-181. That statute provides:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall 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 public agency. The schedule of regular meetings shall be made available to the public.
In construing KRS 61.820 and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has observed:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. Failure to follow all of these provisions constitutes a violation of the Open Meetings Act.
92-OMD-1840, p. 3.
The Commission exceeded its duties under the Act by providing written notices of, and an agenda for, its December 12 regular meeting. The Act does not address the propriety of an agency's use of a consent agenda, and this issue has never been presented to the Attorney General. Our function, in reviewing an appeal under the Open Meetings Act, is restricted to a determination of whether the agency violated the provisions of the Act. We can discern no violation of KRS 61.800 to 61.850 in the use of a consent agenda as long as the minutes of the Commission meeting "set[] forth an accurate record of votes and actions at [the] meeting." KRS 61.835. Thus, the Attorney General has recognized that with respect to the rules of proceeding governing public meetings:
The state legislature has not dictated . . . procedural rules relating to the conduct of meetings, and as a consequence, each legislative body must adopt its own rules of procedure. Many . . . adopt those rules promulgated in Robert's Rules of Order or some other manual of legislative procedure such as Mason's for the orderly conduct of their meetings.
OAG 78-522, p. 2. No doubt, the public reasonably expects and heartily welcomes open and public debate on each and every issue upon which the agency is empowered to act, but we can locate no provision of the Open Meetings Act that proscribes a consent agenda that obviates the need for debate.
Nevertheless, Ms. Goddard objected to the adequacy of the Commission's notice of the work session that preceded the December 12 regular meeting, and her objections are well-founded. On the issue of work sessions, the Attorney General has opined:
KRS 61.805(1) defines "meeting" as
KRS 61.810(1) provides in part that, "All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]"
These definitions are broader in scope and coverage than what [the agency] contemplates. They go beyond "action on any matters of public business" and cover meetings of a quorum "at which any public business is discussed." See OAG 78-411 at page two. This office concluded in OAG 82-91 that a work session attended by a quorum of the fiscal court, at which the presentation of the budget is discussed, is an open and public meeting.
By definition a gathering of a quorum of the members of a public body, at an event described as a work session, must involve at least the discussion of public business or it would be a private session as opposed to a work session.
95-OMD-64, p. 2, cited in 99-OMD-213, p. 6. Unless the work session is a regularly scheduled meeting, within the meaning of KRS 61.820, it must be treated as a special meeting and is subject to all the notice requirements appertaining thereto. As noted, these requirements are codified at KRS 61.823 which provides:
(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.
The Act thus imposes a duty on public agencies to provide written notice of all special meetings, including specially called work sessions. Inasmuch as "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," the Kentucky Supreme Court has declared that 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. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990).
Both Ms. Goddard and Mr. Logan provided this office with a copy of the notice for the work session conducted on December 12. The full text of the meeting notice follows:
NOTICE OF WORK SESSION
THE FRANKFORT/FRANKLIN COUNTY PLANNING COMMISSION WILL HOLD A WORK SESSION AT 5:30 P.M . In THE COUNCIL CHAMBERS OF CITY HALL, 315 WEST MAIN STREET ON WEDNESDAY, DECEMBER 12, 2001.
Although the work session notice adequately identified the date, time, and place of the special meeting and was delivered to the media in a timely fashion, 1 it did not contain an agenda, 2 identifying the topic to be discussed, namely future plans for state building locations in downtown Frankfort. "The failure to include an agenda of the items to be discussed in the written notices of the upcoming special meeting to the media [and the members of the public agency] ," the Attorney General recently observed, "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; see also, 01-OMD-154. The record before us does not support the Commission's position that the work session was properly noticed to the public. There is no evidence that the notice contained an agenda, that it was delivered to Commission members, or that it was posted in a conspicuous place in the building that houses its headquarters and the building where the meeting was held. The Commission did not include an agenda in its meeting notice, and this omission constituted a violation of KRS 61.823. If any of the other requirements discussed above were not met, these omissions constituted additional violations of the Act.
Turning to the procedural issue on appeal, we find that the Frankfort-Franklin County Planning and Zoning Commission's failure to respond to Ms. Goddard's complaint constituted a violation of KRS 61.846(1). That statute provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint, and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The Commission failed to issue a written response, and in so doing committed a procedural violation of the Open Meetings Act. We urge the Commission to review KRS 61.846(1) to insure that future responses conform to the Open Meetings 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 proceeding.
Footnotes
Footnotes
1 The fact that Ms. Goddard did not personally receive written notice of the special meeting does not constitute a violation of the Open Meetings Act. See 96-OMD-216 (enclosed).
2 For a discussion of special meeting agendas, see 01-OMD-175 (enclosed).