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 prior to its April 15, 2002 meeting by failing to give adequate notice of that meeting. For the reasons that follow, we find that the Council violated the Act in characterizing the April 15 meeting as a recessed meeting of its April 1, 2002 regularly scheduled meeting and concluding that as such no notice of the meeting was required. Because a quorum of the council members was not present on April 1, the gathering that occurred on that date had no legal effect and therefore could not be recessed, adjourned, or continued to a later date. Accordingly, the April 15 meeting was a rescheduled regular, or special meeting, subject to the notice requirements codified at KRS 61.823, and the Council's failure to satisfy these requirements constituted a violation of the Open Meetings Act.
On May 9, 2002, Oldham Era Staff Writer Chris Carpenter submitted a written complaint to Mayor Jim Kincer in which he alleged that the Council's April 15 meeting was illegal. Mr. Carpenter explained:
The minutes from the so called emergency meeting on April 8 state that Councilman Fuqua made a motion, seconded by Councilman Smith, to "recess the meeting until April 15 which will replace the previously planned meeting on April 17." The motion passed unanimously.
Because the meeting on April 8 has been found by the Attorney General to be a violation of the law, the meeting on April 15, which was a continuation of the April 8 meeting, is also illegal.
Furthermore, the public was not given notice of the April 15 meeting as required by KRS 61.823.
Furthermore, there was no agenda for the April 15 meeting, which is also required by KRS 61.823.
As a means of remedying the alleged violation, Mr. Carpenter proposed that the Council "acknowledge [that it] violated the law and rescind all action taken at the April 15 meeting."
In a response dated May 24, 2002, 1 Mayor Kincer expressed "strong opposition to [Mr. Carpenter's] stated belief, as [he] and a large crowd of residents attended the April 15 meeting and made no objection at that meeting that it did not comply with the statutes." (Emphasis in original.) He noted that Mr. Carpenter " attended the April 8, 2002 meeting and heard the motion there. " It was Mayor Kincer's position that the April 15 meeting was not a special meeting, "but was a resumption of the April 6th meeting [sic] when there was no quorum. "
In a supplemental response directed to this office following commencement of Mr. Carpenter's appeal, Pewee Valley City Attorney John Frith Stewart elaborated on the Council's position. He advised:
In a letter to Mayor Kincer, Mr. Carpenter incorrectly asserted that "the meeting of the Pewee Valley City Council on April 15 was illegal." As grounds for that statement, Carpenter asserted, in error, that the meeting held on April 15 "was a continuation of the April 8 meeting[.]" Carpenter also stated that the public was not given notice of the April 15 meeting "as required by KRS 61.823" and stated that there was no agenda for the April 15 meeting, "which is also required by KRS 61.823." Carpenter requested that the City remedy this situation by acknowledging that it had "violated the law" and by rescinding "all action taken at the April 15 meeting."
The minutes of the meetings of the Pewee Valley City Council for the meetings held on April 1, 8, 15, 2002, reflect the fact that the regular meeting of the City Council scheduled for April 1, 2002, was recessed until April 17, 2002, because a quorum was not present. This recessed meeting date, of April 17, 2002, was rescheduled by the City Council on April 8, 2002. The new date for the rescheduled regular meeting was set for April 15, 2002.
Therefore, it is clear that the meeting held on April 15, 2002, was not a continuation of the meeting held on April 8, 2002. The meeting held on April 15, 2002, was, in fact, a continuation of the April 1, 2002, meeting, which was the regularly scheduled meeting of the City Council.
Mr. Stewart maintained that "a regularly scheduled meeting that is recessed and then resumed at a later date is not a 'special meeting. '" Citing 93-OMD-123, he further asserted that "the continuation of a regular meeting is not a special meeting [and that t]herefore the 'special meeting' notice and agenda was not required for the meeting held on April 15, 2002." Mr. Stewart concluded that the April 15 meeting "was not conducted in private," that Mr. Carpenter and numerous residents of Pewee Valley attended the meeting, and that neither Mr. Carpenter nor The Oldham Era could properly complain that the meeting was illegal. Respectfully, we disagree. The position the Council takes in relation to these "corrected" facts is legally unsupportable.
It is the opinion of this office that the Council's reliance on 93-OMD-123 is misplaced. In 93-OMD-123, a city council denied that a challenged meeting was a special meeting because "the session held on Tuesday, August 10, was a continuation of a recessed meeting begun on Monday, August 9." At pages 2 and 3 of that decision, the Attorney General observed:
The Kentucky Open Meetings Act (KRS 61.805 through KRS 61.850) contains provisions pertaining to regular meetings (KRS 61.820) and special meetings (KRS 61.823). There are no provisions in the Open Meetings Act dealing with the continuation of meetings so we must look elsewhere to determine the status of such meetings.
In Robert's Rule of Order Revised by General Henry M. Robert, § 18, at page 65, the following appears in part:
In the Manual of Legislative Procedure, by Paul Mason, in Chapter 22, Sec. 214, at page 173, the following appears:
In 4 McQuillin Mun. Corp. (3rd Ed.), § 13.08, it is stated that, "Corporate meetings may be (1) regular or stated, (2) special or called, and (3) adjourned. "
As to adjournments, it is written in 4 McQuillin Mun. Corp. (3rd Ed.), § 13.38 that a regular meeting continues until terminated by an order of final adjournment or by operation of law. "The adjournment may be proved only by the record. If nothing to the contrary appears in the record, the presumption exists that the adjournment was legal."
In 4 McQuillin Mun. Corp. (3rd Ed.), 13.39, the author states in part:
In Town of Hodgenville v. Kentucky Utilities Co., 250 Ky. 195, 61 S.W.2d 1047 (1933), the court said in part:
Based on these authorities, we concluded:
From a technical standpoint the council meeting held on August 10 appears to have been an adjourned meeting. Thus, it is our decision that as an adjourned meeting the meeting of August 10 was a continuation of the regular meeting of August 9 as opposed to a special meeting with the various notice and posting requirements. A meeting pursuant to an adjournment of a regular meeting is itself a regular meeting. Any business which could have been transacted at the regular meeting could have been transacted at the adjourned meeting.
93-OMD-123, p. 4.
The facts before us are clearly distinguishable from the facts that gave rise to 93-OMD-123. Because a quorum of the members of the Pewee Valley City Council was not present at the regularly scheduled April 1 meeting, no meeting occurred. On this point, the Attorney General has repeatedly opined:
In connection with what constitutes a meeting, KRS 61.810(1) provides:
All meetings of a quorum of the members of any public agency at which 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, except for the following[.]
. . .
[O]ne of the elements necessary to constitute a public meeting is the presence of a quorum. . . . Thus, if a quorum [is] not present the meeting in question is not a public meeting under the Open Meetings Act.
93-OMD-63, p.3; see also 94-OMD-63 (holding that "a public agency may conduct a meeting only when at least a quorum of its members are present . . . [If] there [is] no quorum, there [is] no meeting"); OAG 84-208, p. 2 (holding that "A less number than that required for a quorum cannot convene and transact business."); 00-OMD-200, p. 6. (holding that "in the absence of a quorum . . ." the meeting in question was not a public meeting under the Open Meetings Act" ). Because no meeting occurred, no business could lawfully be transacted, including the Council's decision to "recess [] until April 17, 2002, because a quorum was not present." That decision, like the purported regular meeting, had no legal effect. Continuation of a meeting presupposes the occurrence of legally effective meeting. Our decision in 93-OMD-123 is therefore inapposite.
The Pewee Valley City Council's regular meeting scheduled for April 1, 2002 was rescheduled to April 17, 2002, and later rescheduled to April 15, 2002, and thus was not a recessed meeting, an adjourned meeting, or a continued meeting. Instead, it was a special meeting subject to the notice and agenda requirements codified at KRS 61.823. This office has consistently recognized:
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; 01-OMD-175, p. 5, 6. "When the public agency deviates from its regular meeting schedule and reschedules that regular meeting, " we have further recognized, "the rescheduled meeting becomes a special meeting. " 92-OMD-1473, p. 2; 92-OMD-1677; 99-OMD-153; 01-OMD-175. To the extent that the Pewee Valley City Council failed to comply with the requirements of KRS 61.823 prior to the April 15 meeting, including the requirements of adequate notice and an agenda, the Council violated 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.
Chris CarpenterP. O. Box 5204 S. First StreetLaGrange, KY 40031-0005
Mayor Jim KincerPewee Valley City Hall312 Mt. Mercy DrivePewee Valley, KY 40056
John Frith StewartCity AttorneyCity of Pewee Valley6506 W. Hwy. 22P. O. Box 307Crestwood, KY 40014
Stephen Emery6506 W. Hwy. 22P. O. Box 307Crestwood, KY 40014
Footnotes
Footnotes
1 Mayor Kincer indicated, without accompanying explanation, that Mr. Carpenter's complaint "was not received until May 22." It is unclear whether there was a delay in mailing the complaint, a delay in delivery of the complaint, or a delay in the actual receipt of the complaint.
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