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 LaGrange City Council violated the Open Meetings Act by failing to respond to Gary R. Williams's September 13, 2002, open meetings complaint, by characterizing its September 4, 2002, meeting as a special meeting and by prohibiting questions and comments from the public at the meeting. 1 For the reasons that follow, we find that, with the exception of the first violation, the record before us is insufficient to support the claimed violations.
On September 13, Mr. Williams submitted a written complaint to Mayor Pro-tem Lucy Ricketts 2 in which he alleged that the LaGrange City Council violated the Open Meetings Act at its September 4 meeting. By way of background, he explained:
The city [of] LaGrange scheduled its regular monthly City Council meeting for September 2, 2002. This also happens to be a recognized holiday, Labor Day. Because the meeting fell on Labor Day the decision was made to reschedule 2 days later, on September 4th. Because the meeting was held on a date other than the original schedule, the meeting was declared a "Special Meeting. "
Trying to follow the guidelines established under KRS for Special Meetings, the public was advised that only those items on the agenda could be discussed, no new or old business topics would be allowed. The items on agenda for discussion included consideration and vote for not less than 4 city ordinances.
During Council discussion of one of the ordinances I raised my hand to be identified by you, the presiding officer (mayor "pro tem") to ask a question. City attorney Fonda McClellan immediately advised the Council "? because this is a special meeting, comments from the public are not allowed." I stated to the Council that I only wanted to ask a clarifying question about the topic being discussed. My question was not allowed either, under advice of Ms. McClellan. You as acting Mayor then made a general statement to all in attendance that because the meeting was deemed to be a Special Meeting, questions and/or comments from the public were prohibited. The meeting continued to conclusion.
Based on these facts, Mr. Williams alleged two violations of the Open Meetings Act. First, he alleged that "poor scheduling" was no excuse for the council's decision to reschedule the September 2 regular meeting to a later date, thus necessitating its characterization as a special meeting. Mr. Williams maintained that the September 2 meeting "should have occurred on that date, or an amended schedule published in a timely fashion" so as to avoid restrictions on public participation which the council maintained were statutorily required in the conduct of special meetings.
Second, Mr. Williams alleged that nothing in the Open Meetings Act "prohibit[s] comments or questions from the public, either during normally scheduled meetings or special meetings," and that the council violated the Act in refusing to permit him to raise questions or make comments on the matters under discussion. It was his position that the Act does "not support the statement given by the city attorney to the council to prohibit public comment and/or questions." As an alternative to her statement to the council that "during special meetings comments are not allowed," Mr. Williams suggested she could "have stated that the KRS does not guarantee the public the right to speak at meetings" and left it to the council to decide whether to allow comment at the September 4 meeting.
As a means of remedying these alleged violations, Mr. Williams proposed:
1. [T]hat all findings and decisions made during the September 4th meeting be considered invalid, and be rescheduled for consideration at another meeting[;]
2. [T]hat the city attorney be directed to be very specific when giving advice to the City Council and the way that the advice is presented (as to what is verifiable fact within KRS, and what is contention)[;]
3. [T]hat the City Council members (present and future) be educated in how to react appropriately to advice given by council . . . .
Having received no response to his complaint, Mr. Williams initiated this appeal on September 20, 2002.
In a letter dated September 24, 2002, LaGrange City Attorney Fonda V. McClellan responded to Mr. Williams's allegations. Acknowledging her failure to prepare a timely, written response to his complaint, she denied any other violation of the Open Meetings Act. With reference to Mr. Williams's allegation that the September 4 meeting was improperly characterized as a special meeting, Ms. McClellan observed:
City of LaGrange Code of Ordinances § 32.21 states in part that "the regular City Council Meeting shall be conducted on the 1st Monday of each month unless a holiday shall fall on a regular meeting night at which time the meeting shall be held on a next regular weekday which is not a holiday. "
The Labor Day holiday fell on the regular meeting night. Therefore, the meeting should have been moved to Tuesday night. However, the meeting room where council meetings are held was not available so the decision was made to meet on Wednesday night which made the meeting a "special meeting. " According to 92-OMD-1473 when a city deviates from its regular meeting schedule, any rescheduled meeting becomes a "special meeting. " Special meetings are limited in scope to only items on the agenda. KRS 61.823. The news media was notified of the special meeting.
Because the city's ordinance provides for the rescheduling of a regular meeting which falls on a holiday, and the circumstances required the rescheduling of the meeting and consequent characterization of the meeting as a special meeting within the meaning of KRS 61.823, Ms. McClellan asserted that "[t]here was no violation of the Open Meetings Act by scheduling a special meeting. "
With reference to Mr. Williams's allegation that she erroneously advised the council that the Open Meetings Act prohibits public participation during special meetings, Ms. McClellan commented:
At the beginning of the meeting the city attorney advised the council that the meeting was a "special meeting" and therefore only items on the agenda could be discussed. . . . The city attorney was concerned if audience participation was allowed it would go beyond the noticed agenda and therefore could violate the rules that only topics on the agenda could be discussed. 01-OMD-175.
In addition, she noted, "There is no statutory right for public participation at council meetings," and cited 95-OMD-99 in support.
On October 1, 2002, Mr. Williams submitted a written rebuttal to this office in which he objected to Ms. McClellan's "gross misrepresentation of what occurred during the meeting." He advised:
The minutes . . . indicate that the City Attorney made comment that neither new nor old topics can be discussed during a special meeting. The minutes also indicate that Elsie Carter of the City Council supported this comment. Up to this point the minutes (pertaining to this issue) are fairly accurate, as are the comments made by the City Attorney, except that her statement about the public not having a right to speak at a meeting were made to me personally after the meeting ended (when I protested to her personally), not made during the meeting.
However, what is not shown in the minutes is that immediately following the comments by Ms. McClellan and Ms. Carter I stated very specifically that what I wanted to make comment upon was the topic being discussed (by Police Chief Murphy). Ms. McClellan immediately stated to the Council that comments from the public "are not allowed during a special meeting. " My next statement to the Council (et al) was that I wished only to ask a "clarifying question" about the topic being discussed. Ms. McClellan then stated "Neither questions nor comments are allowed during a special meeting. " Mayor (pro tem) Ricketts then reacted by stating that because it was a special meeting neither comments nor questions would be allowed from the public.
Asserting that it is not the propriety of discussing non-agenda items at special meetings or whether the Open Meetings Act does or does not guarantee the public's right to speak at the public meeting that is at issue in his appeal, but the "inaccura[cy of] the legal advice" Ms. McClellan gave the council, and her "misrepresent[ation of] Attorney General's Opinion 95-OMD-99" as a prohibition on public comment. In addition, he reaffirmed his objection to the council's characterization of the September 4 meeting as a special meeting.
In a letter to this office dated October 3, Ms. McClellan addressed the points raised in Mr. Williams's rebuttal. She explained:
Upon reviewing the letter from Mr. Williams, it appears there has been a misunderstanding as to the basis of the comments made at the city council meeting of September 4, 2002. As City Attorney I did advise the council and public at the beginning of the meeting that comments from the public were not allowed at a special meeting. That is based upon my understanding of the special meeting statutes that only matters on the agenda could be discussed. As stated in the previous response filed on behalf of the city, I was concerned that if audience participation was allowed the discussion would go beyond the agenda and therefore could violate the special meetings rules. If my interpretation of the rules regarding matters to be discussed at special meetings is incorrect, I will, of course, take that into consideration in future meetings.
She conceded that Mr. Williams "wanted to ask a question but again the concern of going beyond the agenda caused the city attorney to make the statement that neither comments nor questions are allowed." Ms. McClellan reiterated that Mr. Williams's right, under the Act, to observe the meeting was not abridged, and that the decision to restrict questions in the special meeting was not a violation of the Act, especially in view of the possibility that "any questions from the public could open the meeting to comments beyond the agenda. " Because our role in resolving disputes arising under the Open Meetings Act is confined to issuing a decision stating whether the agency violated the provisions of KRS 61.805 to 61.850, and does not include deciding on what day an agency should conduct its meeting or giving direction to agency counsel on what language should be used in advising his or her client, we affirm the actions of the LaGrange City Council at its September 4 meeting.
To begin, the council is correct in its analysis relative to the status of a rescheduled regular meeting as a special meeting. This office has long 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. "When the public agency deviates from its regular meeting schedule and reschedules that regular meeting, " we have further observed," the rescheduled meeting becomes a special meeting. " 92-OMD-1473, p. 2; 92-OMD-1677; 99-OMD-153; 01-OMD-175; 02-OMD-127. As we noted at page 4 of 92-OMD-1677, "The public has a right to expect a public agency . . . to follow its regular schedule or to call special meetings following the required notice, delivery, and posting provisions pursuant to KRS 61.823."
Under the terms of its published regular meeting schedule, regular council meetings are held on the first Monday of each month "unless a holiday shall fall on a regular meeting night at which time the meeting shall be held on the next regular weekday which is not a holiday. " Had the council conducted its meeting on September 3, as provided for in its regular meeting schedule, that meeting would have properly been characterized as a regular meeting, and the council would not have been "bound by any limitation relative to the discussion of, or action on, matters with which [it is] entrusted . . . ." 01-OMD-175, p. 6. Because the Oldham County Fiscal Court conducts its meetings in the same building as the LaGrange City Council, had scheduled its meeting for September 3, and had expressed doubts about its ability to conclude its business before the city council's meeting was scheduled to begin, the city council rescheduled its meeting for the following evening, September 4, 2002. The council's characterization of the September 4 meeting as a special meeting is indicative not of an attempt to thwart the public's ability to participate by public comment, but of an attempt to strictly adhere to the requirements of the Open Meetings Act as construed by the courts and this office.
We find that the LaGrange City Council did not violate the Open Meetings Act in declining to conduct its regularly scheduled meeting on a holiday. Further, we find that circumstances prevented the council from conducting its meeting per its regular meeting schedule, and that because it rescheduled the regular meeting to a later date, the council was obligated to treat the meeting as a special meeting. The record before us reflects full compliance with the requirements of KRS 61.823 relative to conducting a special meeting. The record does not support the claimed violation.
The council is also correct in its view that discussions and action at a special meeting must be limited to items listed on the agenda in the notice that it is obligated to provide pursuant to KRS 61.823(3). On this topic, the Attorney General has observed:
The public has a right to expect strict compliance with the requirement that discussions and actions at the meeting be limited to items listed on the agenda contained in the notice. Because no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings. Public agencies do not enjoy the same freedom to discuss, or act upon, matters entrusted to them in a special meeting, but are, as noted, restricted to discussion of, or action on, agenda items.
01-OMD-175, p. 6. While the intent of KRS 61.823(3) was almost certainly not to preclude public participation when an agency otherwise normally permits it, and the council's action may reflect an overabundance of caution, its refusal to permit comments and questions from the members of the public attending the September 4, special meeting cannot be said to have violated the Open Meetings Act inasmuch as the Act itself does not endow the public with the right to participate by comment. As this office has often observed:
While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency.
95-OMD-99, p. 3; 00-OMD-169. "While participation by public comment is strongly encouraged," we recently commented, "it is not a right that can be enforced under the Open Meetings Act. " 00-OMD-169, p. 4.
Mr. Williams acknowledges this legal premise, but suggests that Ms. McClellan attempted to mislead the council when she advised the members that public comment is not allowed during a special meeting. It is not for this office to direct an attorney how to advise her client when the net effect of her advice does not result in a violation of the Open Meetings Act. However earnest Mr. Williams was in his desire to speak, and however willing he was to restrict his comments and questions to agenda topics, the council did not violate any legally enforceable right he possessed when it refused to permit him to participate by public comment.
Although the record before us does not support the other claimed violations, we note, in closing, that the LaGrange City Council's failure to respond to Mr. Williams's complaint constituted a violation of the Open Meetings Act. KRS 61.846(1) provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint, and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The council failed to issue a written response, and in so doing committed a procedural violation of the Open Meetings Act. We urge the council to review KRS 61.846(1) to insure that future responses conform to 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.
Gary R. Williams210 Maple AvenueLaGrange, KY 40031
Nancy Steele, MayorCity of LaGrange410 West Jefferson StreetLaGrange, KY 40031
Fonda V. McClellanLaGrange City AttorneyP.O. Box 54LaGrange, KY 40031
Lucy RickettsC/o Mayor's Office410 West Jefferson StreetLaGrange, KY 40031
Footnotes
Footnotes
1 In correspondence directed to this office following submission of his appeal and the council's response, which included a copy of the minutes of the September 4 meeting, Mr. Williams questioned the accuracy of the minutes. He noted that his "comments and those that followed made by the City Attorney . . . [were] omitted," and that these comments "support and prove [his] grievance." Because Mr. Williams did not raise this issue in his initial complaint to the council, the issue is not ripe for review by this office.
2 Because Mayor Nancy Steele was not present at the September 4, meeting, the council appointed Ms. Ricketts Mayor Pro-tem. Mr. Williams directed his complaint to both the Mayor and the Mayor Pro-tem.