Request By:
Jamie D. Smith
P. O. Box 330
Paris, KY 40361Geraldine Summay
P. O. Box 476
Millersburg, KY 40348-0476Bob Chenoweth
121 Bridge Street
Frankfort, KY 40601Arnold W. Carter
3343 Lexington Road
Paris, KY 40361
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 Bourbon County Board of Education violated the Open Meetings Act in the disposition of Jamie D. Smith's June 3, 2002 open meetings complaint concerning the Board's compliance with KRS 61.823 prior to its May 23, 2002 meeting. For the reasons that follow, we find that the Board violated KRS 61.846(1) in failing to issue a timely written response to Ms. Smith's complaint. Further, we find that neither the Board's June 17 response to her complaint, nor its supplemental response to her open meetings appeal arising from that complaint, acknowledge violation of KRS 61.823 relative to the duty to post a complete agenda in the notice of the May 23 special meeting, or indicate that the remedial measures she proposed will be implemented. We therefore disagree with the Board's position that Ms. Smith's appeal "is moot and does not warrant further response."
On June 3, Ms. Smith submitted a written complaint to Bourbon County Board of Education Chairperson Geraldine Summay in which she alleged that the notice of the Board's May 23, 2002 special meeting "did not list the full agenda. " In support, Ms. Smith attached a copy of the notice containing the following language:
The Bourbon County Board of Education will hold a special meeting Thursday, May 23, 2002, at 5:30 p.m. at the Bourbon County Middle School Auditorium. Included on the agenda is discussion of the budget and an expulsion hearing.
Ms. Smith also attached a copy of the minutes of the May 23 special meeting reflecting discussion of "Public Comment on Agenda Items," "Public Comment at Board Meetings," "Attendance of Board Attorney at Board Meetings," and "Approved Maintenance Agreement," in addition to discussion of the budget and an expulsion hearing. As a means of remedying the alleged violation, Ms. Smith proposed that all actions taken at the meeting "be null and void, " and that "the board members be fined by the Attorney General's office if a reply or resolutions is [sic] not presented." On July 8, 2002, Ms. Smith appealed the Board's disposition of her June 3 complaint to the Attorney General.
On June 21, 2002, the Attorney General issued 02-OMD-121, an open meetings decision arising from an appeal initiated on June 5 that also involved these parties and related to substantiated and unsubstantiated allegations of violations occurring between October 24, 2001 and May 16, 2002. Among allegations deemed substantiated by this office, 1 we found that the Board violated KRS 61.823 at its October 24, 2001, February 28, 2002, and May 10, 2002 special meetings by failing to post a finalized agenda for these meetings, along with the written notice of date, time, and place, at least twenty-four hours before the meetings occurred, and failing to restrict discussions at the meetings to agenda items. A copy of that decision is attached hereto and incorporated by reference.
In responding to the June 5 open meetings appeal that resulted in 02-OMD-121, the Board noted, in closing, that "the grievance allegation" set out in Ms. Smith's June 3, 2002 letter, "seems to be premised upon a belief a copy of the actual agenda must be posted, " and referenced the arguments advanced in the preceding paragraphs of that response. 2 In the supplemental response submitted to this office following commencement of Ms. Smith's July 8 appeal, the Board stated:
In the response to [the Attorney General's office] dated June 17, 2002, relative to an Open Meetings Act appeal by Ms. Smith, Log No. 200200264, [the Attorney General's office was] provided a photocopy of the grievance response to Ms. Smith of the same date which specifically references her June 3, 2002, letter. While the facts as asserted by Ms. Smith in that letter are not at all wholly accurate, 3 . . . the subject of her "grievance" as to the May 23, 2002, meeting of this Board of Education was believed to have been responded to in the June 17, 2002, letter to her and the issue as to the posted notice having to include the full agenda has been since then addressed in 02-OMD-121.
On this basis, the Board asserted that "Ms. Smith's latest Open Meetings Act appeal is moot and does not warrant further response." Respectfully, we do not agree.
As noted above, this office resolved the issues now before us in 02-OMD-121 as those issues related to the violation of KRS 61.846(1) occurring after Ms. Smith submitted her May 22 open meetings complaint, and the violations of KRS 61.823 occurring prior to the special Board meetings held on October 24, 2001, February 28, 2002, and May 10, 2002 . We did not resolve, or even address, the issue of noncompliance as it relates to the Board's failure to respond to her June 3 open meetings complaint. Nor did we resolve, or even address, the issue of noncompliance as it relates to the Board's failure to post a complete and finalized agenda, along with the notice of the written notice, for its May 23 special meeting. We believe, and the Board does not appear to disagree, that the law relative to compliance with KRS 61.846(1) and 61.823 is clearly established and accurately reflected in 02-OMD-121. We do not believe that the issues relating to separate, and as yet unreviewed, allegations of open meetings violations are therefore moot.
Black's Law Dictionary , 909 (West, 5th ed. 1979) states that "an action is considered 'moot' when it no longer presents a justifiable controversy because issues involved have become academic or dead [citation omitted]." The concept of mootness has been invoked in three open meetings appeals, the first involving the admission of open meetings error by the Powell County Board of Education following the submission of an appeal (98-OMD-74), the second involving the admission of open meetings error by the University of Kentucky following the submission of an appeal (98-OMD-119), and the third involving the admission of open meetings error by the Prestonsburg City Council following the submission of an appeal (02-OMD-108). Recognizing that if the agency followed the recommended course of remedial action, or followed an alternative, but mutually agreed upon, course of remedial action, 4 the issue would then be mooted, we observed:
This scenario 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 provides 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 meeting appeals, we believe that its underlying logic applies with equal force in these appeals. Where the agency concedes error, the issue upon which that portion of the appeal is based becomes academic or moot.
98-OMD-74, p. 8.
In the appeal before us, the Bourbon County Board of Education has neither acknowledged error nor agreed to the proposed course of remedial action, or a mutually agreed upon alternative course of remedial action. Indeed, the Board has said little more than that Ms. Smith's recitation of fact was not "wholly accurate," that it responded to the most recent allegation in its June 17 letter to her, and that her latest appeal "does not warrant further response." Moreover, the time for initiating an appeal of 02-OMD-121 to the circuit court pursuant to KRS 61.846(4)(a) has not expired. For these reasons, we cannot agree that the issues presented in the instant appeal are moot. Instead, we find that the Board's actions constituted a violation of KRS 61.846(1) and KRS 61.823.
Having so determined, we note that the Attorney General is not empowered to fine the Board's members, or declare their actions null and void. As we have so often noted, our review is confined to the issue of whether the agency violated the Open Meetings Act. See KRS 61.846(2) providing that the Attorney General shall issue "a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850"; see also, 93-OMD-49, 93-OMD-81, 94-OMD-83, 94-OMD-111, 98-OMD-74. Thus, "the Attorney General cannot void actions taken or impose penalties for violations of the Open Meetings Act, only the circuit court can do that." 97-OMD-90, p. 4.
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 Attorney General also concluded that the Board violated KRS 61.846(1) by failing to issue a timely written response to Ms. Smith's May 22, 2002 open meetings complaint.
2 The issues raised in Ms. Smith's June 3 complaint were not properly before us in her June 5 appeal since the Board had not had three business days to respond to that complaint.
3 The Board does not identify the "inaccuracies" in Ms. Smith's recitation of facts.
4 With regard to the issue of remedial action, at page 8 of 98-OMD-74, we observed, "Our review . . . is confined to the issue of whether the agency violated the Open Meetings Act, and not the remedial measures it implements."