Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Prestonsburg violated the Open Meetings Act in responding to Susan Allen's May 17, 2002 complaint concerning the City Council's May 15, 2002 special meeting and the failure of the City to provide her with written notice of the meeting and its refusal to hold the special meeting again.
On May 17, 2002, Ms. Allen submitted a written complaint to Jerry Fannin, Mayor, City of Prestonsburg, in which she complained she did not receive written notice of the special meeting held by the Prestonsburg City Council on May 15, 2002 and asked that the Council hold the special meeting again and give legal notice to those who have letters on file with the City requesting to be notified of special meetings as required by law.
By letter dated May 17, 2002, Mayor Fannin responded to Ms. Allen's complaint, advising her:
Upon receipt of your May 17, 2002 letter of protest to the May 15, 2002 special called meeting of the Prestonsburg City Council we checked the City records and inquired specifically with the City Clerk as to whether you, in fact, filed a written request to receive notice of any special called meetings of the City Council. We find no such written request from either you or on behalf of The Big Sandy News as indicated in your May 17, 2002 correspondence. Accordingly, no violation of the Open Meetings Law occurred as you alleged based upon what the City's official records reflect.
If you did make a written request as you indicate please provide me with a copy of your written request and advise me of the date and time you filed your request with the City Clerk. Otherwise, I can only rely upon what the City's records reflect with regard to which members of the media actually filed a written request pursuant to KRS 61.823(4)(A) and , thus far, the City's records do not reflect a written request from you as you indicated.
Should you wish to be notified of any future special called meetings please file your written request for notification under KRS 61.823 with the City Clerk and we will be happy to notify you of any such meetings.
On May 20, 2002, Ms. Allen responded to Mayor Fannin's letter by again requesting that the City hold the special meeting again, stating in part:
At the January 28, 2002, city council meeting, I gave the city clerk a written request to be notified of all special meetings of council and my business card with my telephone and fax numbers to receive notification of special meetings. I am sending a copy of that letter with its response. Since giving the clerk written notice, The Big Sandy News has been receiving written notice of all regular and special meetings of council, except the May 15 special meeting.
In her letter of appeal, Ms. Allen asked this office to determine whether the City had violated the Open Meetings Act.
After receipt of Notification of Ms. Allen's appeal, the City provided this office with a response to the issues raised in the appeal. Responding on behalf of the City, David H. Neeley, Neeley & Reynolds, PSC, in a letter dated May 21, 2002, denied the City had violated the Open Meetings Act and further advised:
Although the City denies that it was in violation of the Open Meetings Act by not notifying the Big Sandy News of the special called meeting of the City Council of May 15, 2002, rather than expend any further time debating the matter with Ms. Allen and the Attorney General's office, another special meeting has been set by the Mayor of Prestonsburg to take up matters previously entertained by the Prestonsburg City Council at its May 15, 2002 meeting. Ms. Allen's newspaper will be notified of that meeting, notwithstanding the fact that the City has no record of Ms. Allen's January 28, 2002 request that her paper be notified. This is simply being done as an accommodation and to expedite the City's business.
Enclosed with this correspondence is a copy of the agenda of the special called meeting of May 22, 2002 in which the annexation Ms. Allen refers to will be addressed again by the Council. I am also enclosing a copy of Mayor Fannin's May 17, 2002 response to Ms. Allen's original complaint and an affidavit from the City Clerk reflecting that the City's records do not contain a copy of Ms. Allen's January 28, 2002 request along with a copy of the form which was forwarded to Ms. Allen by which she could have lodged her written request for the City's records which, to date, Ms. Allen has not completed and returned to the City Clerk.
I also wish to respond on behalf of the City to Ms. Allen's statement that the City has notified the Big Sandy News of the City's regular and special meetings since January 28 except for the May 15, 2002 meeting. Ms. Allen's newspaper has, in fact, been provided with notices of those meetings but only after Ms. Allen routinely called the Clerk's office inquiring as to whether there were meetings scheduled and requested copies of the agenda. This, also, was done as an accommodation to Ms. Allen even though the City had not received a written request from either her or her paper requesting specific notification.
With the special called meeting of May 22, 2002 at which time the annexation ordinance will again be addressed by the City, Ms. Allen's complaint will become moot. Prior to the time that Ms. Allen filed her complaint with your office a decision had already been made by Mayor Fannin to have the City Council re-address passage of the annexation ordinance, No. 5-2002, about which Ms. Allen complained. Accordingly, we see no basis for either Ms. Allen's complaint or for the Attorney General to expend any further effort on this matter.
We are asked to determine whether the actions of the Prestonsburg City Council violated the Open Meetings Act. For the reasons that follow, we conclude that the issue concerning the request for the City to hold the meeting again is moot, as the City has agreed to set another special meeting to take up matters previously discussed by the City Council at its May 15, 2002 meeting. 1
However, we cannot resolve the issue as to whether the City violated KRS 61.823(4)(a), by failing to provide written notice to Ms. Allen's newspaper of the special meeting or whether the newspaper had filed a written request with the City to be notified of special meetings.
Ms. Allen provided this office with a copy of a January 28, 2002 letter from her, addressed to" "To Whom It May Concern," stating:
This is written notice by The Big Sandy News requesting we be informed of all special and emergency meetings of this public agency within the mandates outlined in the Kentucky Open Meetings Law.
The City provided this office with an affidavit from the City Clerk stating that she "never received a written request made pursuant to KRS 61.823(4)(a) from either Susan Allen or The Big Sandy News requesting notification of special called meetings of the Prestonsburg City Council." The City Clerk further advised that the records of the City had been searched and no such request had been located.
We cannot resolve this issue because of a conflict in the facts presented to this office by the parties. 00-OMD-169. This difficulty is exacerbated by the fact that our review is limited to the written record presented by the parties. KRS 61.846(2). The divergent factual accounts presented by the parties with regard to this issue compel us to conclude that the record is insufficient to support the claimed violation. Simply stated, we are not equipped to resolve this factual dispute in either party's favor.
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 This holding can be analogized to an open records appeal in which a public agency initially denies a request for records and an appeal is filed, but the agency releases the records before the Attorney General issues his decision. In such instances, 401 KAR 1:030, Section 6, specifically provided that "the Attorney General shall decline to issue a decision in the matter." Although the regulation does not extend by its express terms to open meetings appeals, we believe that its underlying logic applies with equal force in this appeal. Where the agency agrees to the requested remedy, the issue upon which that portion of the appeal is based becomes academic or moot. See 98-OMD-74.