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 Pewee Valley City Council violated the Open Meetings Act at its April 8, 2002 meeting which was held for the purpose of enacting a tall structures ordinance. For the reasons that follow, we find that the Council violated the Act in characterizing the meeting as an emergency meeting and consequently failing to strictly observe the notice requirements codified at KRS 61.823. Because the meeting was improperly convened, discussions at the meeting, whether opened or closed, were improper. We therefore do not address the propriety of the closed session discussions which the Council maintains were conducted under authority of KRS 61.810(1)(b) and (c).
On April 10, 2002, Pewee Valley resident Stan Fitch submitted a written complaint to Mayor Jim Kincer in which he alleged that the Pewee Valley City Council's April 8 emergency meeting violated the Open Meetings Act insofar "as no real emergency existed at that time." Mr. Fitch further alleged that the closed session discussion of the cell tower consultant's report and renewal of the option to purchase real property at that meeting violated the requirements of the Act.
In a response dated April 17, 2002, Mayor Kincer denied the allegations contained in Mr. Fitch's complaint. Mayor Kincer explained:
The meeting was called to discuss, consider, and enact an ordinance concerning tall structures. As you are likely aware, a cell tower may soon be erected in the City of Pewee Valley. As I recently stated, in a City meeting held on April 15, 2002: "There has been the greatest level of civil unrest over this impending tower. " Because the City was put on notice that the company proposing the construction of the cell tower was making immediate application to the Public Service Commission, time was of the essence.
In addition to this emergency situation, the City also had to consider whether to renew an option to purchase real property. This property is a potential alternate site for the cell tower. Again, time was of the essence.
Further, the city bills needed to be paid without delay. Since the town council had not approved this payment, it was necessary that this matter be considered immediately. Again, time was of the essence. 1
In closing, Mayor Kincer asserted that "there was a proper basis for the emergency meeting, and there was a proper basis for the closed session. " Mr. Fitch appeals this denial.
In supplemental correspondence directed to this office following commencement of the appeal, Pewee Valley City Attorney John Frith Stewart elaborated on the Council's position. He explained that the proposed tall structures ordinance "embodied the City's legislative intent to take action to regulate tall structures," including the proposed cell tower that was "the subject of the notice for the emergency meeting. " The agenda for the meeting, Mr. Stewart advised, was "to discuss the cell tower and take any action deemed necessary, and to approve and pay the City's bills." 2 Continuing, he noted that Mayor Kincer had just learned that House Bill 270, empowering local planning commissions to control cell tower locations, had cleared both houses of the legislature and was awaiting the Governor's signature, and that Crown Castle, with whom the City had been conducting cell tower negotiations, would, in all likelihood, race to file an application for a cell tower with the Public Service Commission "to avoid the effect of this soon to be enacted law." Mr. Stewart claimed that this legislative event constituted "an emergency to the City of Pewee Valley." Moreover, Mr. Stewart argued that the nine month controversy surrounding the cell tower proposal had resulted in "civil unrest in Pewee Valley . . . to the extent that certain residents organized to oppose the proposed cell tower siting, and suggestions were offered by citizens for proposed ordinances to oppose the erection of the cell tower. " However, no evidence was provided to indicate any threats to persons or property or any violations of the law. Mr. Stewart advanced similar arguments in support of the Council's "emergency" discussion of renewal of the option to purchase real property, 3 and its approval of the payment of city bills. 4
The record before us does not support the Pewee Valley City Council's position that an emergency existed in Pewee Valley on April 8 that justified a suspension of the requirements of KRS 61.823(2), (3), and (4), or that adequate notice was otherwise given for the meeting. As noted, KRS 61.823(5), relating to emergency meetings, provides:
In the case of an emergency which prevents compliance with subsections (3) and (4) of this section, this subsection shall govern a public agency's conduct of a special meeting. The special meeting shall be called pursuant to subsection (2) of this section. The public agency shall make a reasonable effort, under emergency circumstances, to notify the members of the agency, media organizations which have filed a written request pursuant to subsection (4)(a) of this section, and the public of the emergency meeting. At the beginning of the emergency meeting, the person chairing the meeting shall briefly describe for the record the emergency circumstances preventing compliance with subsections (3) and (4) of this section. These comments shall appear in the minutes. Discussions and action at the emergency meeting shall be limited to the emergency for which the meeting is called.
In a recent open meetings decision, the Attorney General construed this provision. We observed:
Our research of existing case law and Attorney General's open meetings decisions discloses no instances where the courts or this office have determined that circumstances were sufficiently grave to warrant a decision to call an emergency meeting.
An emergency is defined as "a serious, unexpected situation or occurrence that demands immediate action. " The American Heritage Dictionary (Houghton Mifflin Company, 3d ed. 1994). Examples of an emergency under this definition would include, but not be limited to, occurrences such as a natural catastrophe or civil unrest. However, a determination of what constitutes an emergency is intrinsically situational, requiring a case-specific analysis directed at ascertaining whether circumstances are sufficiently serious, unexpected, and in need of immediate action to justify a suspension of the normal rules of proceeding. . . . [I]n making this determination, we are guided by the principles set forth in Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997).
00-OMD-80, p. 6. Based upon these principles, in 00-OMD-80 we held that eleventh hour discussions relating to a request that a bill be drafted to change the name of a community college prior to the last day for filing a bill in the General Assembly could not be properly characterized as an emergency. See also, 00-OMD-227.
The Pewee Valley City Council maintains that the passage of House Bill 270 and Crown Castle's response thereto, coupled with community opposition to the proposed cell tower site, created an emergency situation that excused the Council from strictly complying with the notice requirements for a special meeting. Such was not, in our view, a sufficient basis for declaring that an emergency existed. We do not agree that the perceived necessity of enacting an ordinance to facilitate a new negotiating posture, under these circumstances, can be equated to "a serious, unexpected situation or occurrence that demands immediate action, " especially in view of the fact that the proposed ordinance had apparently been under consideration for several months. Moreover, organized opposition cannot generally be equated to "civil unrest" unless it is accompanied by acts of lawlessness that necessitate an immediate official response. Finally, discussions pertaining to the renewal of an option to purchase real property and the payment of bills, as well as a consultant's report and litigation concerning a separate and unrelated ordinance, were tangential, at best, to the alleged emergency for which the meeting was called, and did not rise to the level of an emergency as defined above.
Because an emergency did not exist, we believe that the Pewee Valley City Council was obligated to strictly comply with the notice requirements set forth at KRS 61.873(2), (3), and (4). It failed to do so. The emailed notice that was transmitted to council members, media organizations that had filed a written request for notice, and individuals for whom the Mayor had email addresses was clearly deficient to the extent that it was not issued at least twenty-four hours before the meeting, was not delivered personally, by fax, or by regular mail, 5 and was not posted in a conspicuous place in the building housing the Council's headquarters or the building where the meeting took place. Adequate notice was not given and the resulting meeting was improper. Discussions at that meeting were also improper regardless of whether they were conducted in open session or closed session. Accordingly, we do not address whether the Pewee City Council properly relied on KRS 61.810(1)(b) and (c) as the basis for closed session discussions, but conclude that the Council's actions violated both the spirit and the letter of 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 proceedings.
Footnotes
Footnotes
1 In the course of his letter defending the Council's emergency meeting to discuss enactment of a tall structures ordinance, Mayor Kincer acknowledged discussions of renewal of an option to purchase real property, payment of city bills, the cell tower and cell tower consultant's report, and pending litigation concerning the culvert fee ordinance.
2 Mr. Stewart did not furnish us with a copy of the emergency meeting notice or agenda.
3 Mr. Stewart opined, "[T]he viability of this site as a site for the cell tower was in serious jeopardy on April 8, 2002 . . . [and] the purchase option on this alternative site was soon to expire."
4 Mr. Stewart opined, "The bills were due and there was not a regular meeting scheduled before the due date."
5 At this time, the Open Meetings Act does not recognize the validity of an emailed meeting notice. In 00-OMD-227, the Kentucky Access Subcommittee posted its meeting notice on the Subcommittee website, and we concluded that the notice was ineffective. We reasoned that the meeting notice could be posted on the website "in addition to, rather than in lieu of," the delivery requirements codified at KRS 61.823. The same reasoning applies to emailed meeting notices until such time as the General Assembly elects to statutorily recognize the "new" technology.