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 Kentucky State University's Board of Regents violated the Open Meetings Act at its November 2, 2001 meeting when it voted to extend President George W. Reid's contract without adequate notice of the contemplated action in the meeting agenda. Because the record on appeal does not support the Board's position that the November 2 meeting was a regular meeting, we find that it was a special meeting and apply the standard of specificity for the description of special meeting agenda items articulated in 01-OMD-175. That standard requires "sufficient specificity in the description of the items to be discussed [or acted upon] to insure fair notice to the public." 01-OMD-175, p. 5. It is the opinion of this office that although the Board of Regents could have employed more specific language in describing the contemplated action in the agenda, fair notice could be imputed to the public that the Board would vote on the President's contract.
On January 8, 2002, Faculty Regent/Professor Charles H. Bennett submitted a written complaint to William H. Wilson, Chairperson of the Kentucky State University Board of Regents, in which he alleged that "[t]he agenda notices for the November 2, 2001 meeting, distributed to the public by the KSU Office of Public Relations . . . and contained in the [Board of Regents] agenda materials . . ., did not specifically indicate that official action was to be taken by the [Board] to consider extending the contract of the current President." Instead, Dr. Bennett noted, "the agenda indicated that the Board was to receive a report from the ad hoc Committee on Presidential Leadership, appointed by [Chairman Wilson] to review imput from Board members concerning the overall performance of the President." As a means of remedying the alleged violation, Dr. Bennett proposed "that the action of the Board on 11/2/01 in extending the President's contract be voided, and the full Board be asked to reconsider the question of extending the President's contract at [the Board's] next statutory meeting, following official distribution of our agenda to the general public. "
In a response dated January 11, 2002, Chairperson Wilson denied the allegations contained in Dr. Bennett's complaint "based on the legal opinion of our Board attorneys that the Open Meetings Act was not violated at our November 2, 2001 statutory meeting." It was the Board's position that its November 2 meeting was a regular meeting for which there was no legal requirement that an agenda be prepared. Citing the requirement, codified at KRS 61.820, that all meetings of all public agencies be held "at specified times and places which are convenient to the public, and all public agencies . . . 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," the Board maintained that it satisfied the statute in two ways. The Board opined:
First, this requirement is satisfied by the mandates of the statutes governing the Boards of Regents of the regional universities in Kentucky. Specifically, KRS 164.340 directs that
KRS 164.340 (emphasis added). The term "governing board" in this statute includes the Board of Regents of Kentucky State University. See KRS 164.290, et seq. By requiring the KSU Board to conduct "quarterly" meetings, KRS 164.340 satisfies KRS 61.820's requirement for a "schedule of regular meetings."
The KSU Board of Regents also satisfies the requirements of KRS 61.820 by specifying in its Bylaws that the Board shall "meet quarterly in a regular session. " These meetings have generally been referred to as the Board's "regular" or "statutory" meetings.
Because the Open Meetings Act "only requires that an agenda be published for any special meeting, " the Board concluded that its actions were consistent with the Act.
On appeal, Dr. Bennett challenges the Board's position, asserting that "extension of the [President's] contract was not clearly identified as an action item on the agenda distributed to Board members and the general public, and that, in contrast, past agendas for Board meetings at which contracts were acted upon included specific items such as "Ratification of Employee Contracts." Dr. Bennett attached a copy of the Board's June 4, 2001 meeting agenda containing this item. He asks that if we affirm the Board of Regents on the open meetings issue raised, we proceed to determine if the Board violated Section 7 of its governing bylaws relating to the duties of the secretary in preparing an agenda.
In a supplemental response directed to this office following commencement of Dr. Bennett's appeal, KSU Director of Records, Policies and Legal Services Karen A. Powell elaborated on the Board's position. Reaffirming the argument that the November 2 meeting was a regular meeting for which no agenda was required, Ms. Powell argued, in the alternative, that "action on the President's contract was actually included in the November 2, 2001 agenda. " She explained:
Item VI. entitled "Board and Presidential Leadership ad hoc Committee report" indicates that the committee formed to evaluate the President and make recommendations to the Board concerning his contract would give their report and recommendation at that meeting. This ad hoc committee was formed expressly for that purpose and would have had no other business to consider or discuss at the meeting.
In closing, Ms. Powell asserted that the Board of Regent's bylaws "have no bearing on whether or not the Board complied with the Open Meetings law."
We concur with Ms. Powell and the KSU Board of Regents in the latter observation. Since the Attorney General assumed the role of dispute mediator in open meetings appeals, we have recognized that our authority under KRS 61.846(2) is narrowly defined. That statute directs the Attorney General to review the open meetings complaint and denial and issue a written decision "which states whether the agency violated the provisions of the Open Meetings Act. " (Emphasis added.) The office is not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws. We therefore respectfully decline to address this issue.
Turning to the open meetings issue Dr. Bennett raises, we find that the KSU Board of Regents' November 2 meeting was not a regular meeting, within the meaning of KRS 61.820, but was instead a special meeting for which an agenda was required. Our decision is based on the express language of that statute:
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.
KRS 61.820 (emphasis added.) In construing this statute and its companion statute, KRS 61.823, the Attorney General has repeatedly 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. 1
With direct reference to the requirement that a public agency establish a schedule of regular meetings by official action, that the schedule identify the dates, times, and places of those regular meetings with specificity, and that the schedule be reduced to writing so that it can be made available to the public, this office held in OAG 78-614 that KRS 61.820 clearly mandates provision "for a schedule of regular meetings specifying the date, time and place." OAG 78-614, p. 2. In 94-OMD-50, we hold that a notice signed by the magistrates of the fiscal court, stating that the magistrates would be present in the courthouse on the first and third Wednesday of each month between the hours of 8:00 a.m. to 9:00 a.m., "was sufficient in content to be a schedule of regular meetings." 94-OMD-50, p. 5. Finally, in 01-OMD-154, we held that the omission of a stated time and place from that portion of the Rules of Order for a public agency's meetings establishing a regular agency meeting on "the third Tuesday in April of each calendar year" violated KRS 61.820. At page 6 of that decision, we stated that "consistent with the goal of maximizing notice to the public, the [agency] 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 hastened to note, however, that "if a separate document exists that is intended to serve as the schedule [of regular meetings], 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." Id. 2
In the appeal before us the Board maintains that the statutory mandate of quarterly meetings, coupled with the provision in its bylaws requiring quarterly meetings in regular session, satisfies KRS 61.820. Based on the authorities cited above, we do not agree. We have confirmed that the Board did not establish a schedule of regular quarterly meetings, identifying those meetings by date, time, and place, that included the November 2 meeting and that was available to the public. Neither KRS 164.340, nor the provision in its bylaws relating to quarterly meetings in regular session, is "sufficient in content to be a schedule of regular meetings." 94-OMD-50, p. 5. Because the November 2 meeting was not a regular meeting within the meaning of KRS 61.820, it was a special meeting within the meaning of KRS 61.823, and subject to the requirement that its meeting notice include an agenda identifying the items to be discussed with sufficient specificity to insure fair notice to the public, and limiting discussion and action at the meeting to the items listed on the agenda. KRS 61.823(3).
The narrow question that remains is whether agenda item IV, "Board and Presidential Leadership ad hoc Committee report" was sufficiently specific to insure fair notice to the public that a vote on extension of the President's contract would be conducted. This is a close question. In 01-OMD-175, 3 we held that fair notice to the public could not be imputed from vaguely worded description items such as "old business," "new business, " "open to floor," and "open to council," concluding that such vaguely worded descriptions "invite discussions and action on any topic without the limitations envisioned by the statute in a special meeting. " Dr. Bennett notes that in the past, agendas for Board meetings at which employee contracts were acted upon included specific items such as "Ratification of Employee Contracts." On behalf of the Board, Ms. Powell responds that whereas action on employee contracts is a frequent agenda item, action on the President's contract is a rare agenda item and therefore the two cannot be meaningfully compared. Because the ad hoc committee had only one charge, she avers, and that charge was to "make recommendations to the Board concerning [the President's] contract," it was apparent that action would be taken on the contract upon receipt of the committee's report.
While we believe that the Board might have employed more specific language in describing the contemplated action, namely the vote on extending the President's contract, in the November 2 meeting agenda, we are not prepared to say that the agenda item was so vaguely worded that fair notice could not be imputed to the public. Certainly, it cannot be equated with such vague descriptions as "old business," and "new business. " Nevertheless, until such time as the KSU Board of Regents establishes a schedule of regular meetings, thus obviating the requirement of an agenda of any kind under the Open Meetings Act, 4 we urge the Board to " scrupulously comply with the notice requirements set forth at KRS 61.823 ," including the requirement of a written agenda aimed at "maximizing notice to the public."
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.
Dr. Charles H. BennettCarver Hall 205 A/MASCFrankfort, KY 40601
William H. WilsonChairpersonKentucky State UniversityBoard of Regents4817 Chaffey LaneLexington, KY 40515
Karen PowellGeneral CounselKentucky State University400 E. Main StreetFrankfort, KY 40601-2355
Guthrie TrueJohnson, Judy, True & Guarnieri, LLP326 W. Main StreetFrankfort, KY 40601
Footnotes
Footnotes
1 It is important to note that the Attorney General has also recognized that "when the public agency deviates from its regular meeting schedule and reschedules that regular meeting, the rescheduled meeting becomes a special meeting" and is subject to the specific legal requirements set forth in KRS 61.823(2)(3) and (4). See 92-OMD-1473, p. 2; 92-OMD-1677; 99-OMD-50; 01-OMD-175.
2 In 99-OMD-166, the Attorney General recognized that some public agencies do not conduct the public's business on a sufficiently regular basis to justify regular meetings. There we held that KRS 61.820 "invests [agencies] with some latitude in determining whether to meet on a regular or as needed basis," but that, in the latter case, all of the agency's meetings must be treated as special meetings "and scrupulously comply with the notice requirements set forth at KRS 61-823." 99-OMD-166, p. 5 (emphasis in original). Because it is statutorily required to conduct quarterly meetings, KSU's Board does not have this option.
3 A copy of 01-OMD-175 is attached hereto and its reasoning incorporated by reference.
4 The requirement of a meeting agenda remains in Section 7 of the Board's bylaws.