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 Nortonville City Council violated the Open Meetings Act in refusing to amend the minutes of its November 4, 2002, meeting to reflect "what was said and done at that meeting." For the reasons that follow, and upon the authorities cited, we conclude that although the Nortonville City Council violated KRS 61.846(1) in failing to respond to an open meetings complaint, the Council's refusal to amend the minutes of the meeting did not constitute a violation of the Act.
On December 11, 2002, Delbert Powell submitted an open meetings complaint to Mayor James Noel in which he alleged that the minutes of the Council's November 4 meeting, which were approved at the Council's December 2 meeting, did not accurately reflect "what was said and done in a vote [Mayor Noel] asked for . . . on whether or not the police car should stay in the city of Nortonville at night, " in contravention of KRS 61.835. Mr. Powell explained:
At the November meeting you asked each member present to vote on the Police car, starting with Andrew Holmes, and went through each member present until you got to Helen Stevens and you stopped the vote.
As a means of rectifying this violation, Mr. Powell requested that the Council "amend the minutes of the November meeting to reflect what was voted on and what was said at the meeting," and consider any action taken "null and void." Mr. Powell received no response to his complaint prompting him to initiate this appeal. On appeal, Mr. Powell challenges the Council's refusal to amend the minutes and asks "whether the mayor has the authority to let the police take the car to his home at night, or does it fall to the Council to approve it?"
In correspondence directed to this office following commencement of Mr. Powell's appeal, Assistant Nortonville City Attorney William M. Cox, Jr., responded to the appeal asserting that "the minutes of the November 4 meeting, which were subsequently approved by the unanimous vote of the City Council at the December 2, 2002, meeting, are accurate, correct, and proper as originally prepared." 1 In support, Mr. Cox cited KRS 61.835 and OAG 81-387, explaining:
KRS 61.835 requires that the minutes of "action taken" at every meeting of a public agency set forth an accurate record of votes and actions at such meetings. Additionally, the minutes are not required to show any more than the formal action taken and the votes cast by the meeting members, and the minutes are not required to summarize the discussion or record what any individual member said. OAG 81-837. Further, the term "action taken" is defined in KRS 61.805(3) to mean "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body."
As previously stated, the minutes of the November 4, 2002 meeting are accurate, correct and proper. While the mayor and the Council engaged in a general discussion of the matters referred to in Mr. Powell's letter of December 11, 2002, the Council took no formal action with regard to those matters. The Council made no collective decision, made no commitment or promise to make a positive or negative decision, nor made any actual vote by a majority of its members. Further, no council-member made any motion concerning the matters, and no council-member objected to the minutes of the November 4 meeting when said minutes were discussed and approved at the following Council meeting conducted on December 2, 2002. As such, there is no requirement that the minutes reflect the discussion.
With regard to Mr. Powell's inquiry concerning the Mayor's authority to permit the police chief to drive a police car to his home in the evening, Mr. Cox maintained that "said question is outside the scope of this Open Meetings Appeal . . . ."
On January 1, 2003, Mr. Powell faxed this office an "amendment" to his open meetings appeal. 2 Based on his discussion with "some councilman" who informed him that "there was not a second," he amended his appeal:
to not having this discussion in the minutes. It did go through four of the five council members and the Mayor stopped the discussion.
It was Mr. Powell's position that "the minutes did not reflect what was said and done, and should have said lack of a second the vote died . . . [W]hether it is a discussion or a vote it should be shown in the minutes. " Respectfully, we do not agree.
KRS 61.835 provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
In an early open meetings opinion the Attorney General construed this provision, unchanged since its enactment in 1974, to require that the minutes of a public meeting show only "the formal actions taken and the votes cast by the members," and not to require the minutes of the meeting "to summarize the discussion or record what any of the members said." OAG 81-387, p. 2. We relied on the express language of the statute as well as "the foremost authority on parliamentary procedure, Roberts' Rules of Order, Newly Revised, . . . [stating] that minutes should contain mainly a record of what was done at the meeting, not what was said by the members." Id. at 1. On these bases, we concluded that "anything more than [a record of votes and actions] is a matter of parliamentary procedure and the discretion of the public body." Id. In a subsequent open meetings opinion, we clarified this position with regard to the necessity of recording the name of the person who makes or seconds a motion:
The customary practice in parliamentary bodies is to record in the minutes the name of the person who makes or seconds a motion, but such is not required by this statute. It is required, however, that the minutes show how each member voted or if he abstained. If the vote was unanimous it is sufficient to so state in the minutes.
OAG 82-412, p. 2. We reaffirmed this position in OAG 91-196, holding that KRS 61.835 requires "that the minutes of the meeting show how each member voted or if he abstained except, if the vote was unanimous, it is sufficient to so state in the minutes. " OAG 91-196, p. 2.
In construing the Open Meetings Act's sister statute, the Open Records Act, the Kentucky Supreme Court has declared:
As with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly. We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247 (1962). We are guided by these cases, along with the clear language of KRS 61.835 and the opinions of this office interpreting it, in concluding that the Nortonville City Council did not violate the Open Meetings Act in refusing to amend its minutes to reflect the discussion relating to the city police car which occurred at its November 4 regular meeting. Although it is within the discretion of any public agency, including the Council, to record discussions occurring in the course of its meetings, it is not required to do so. We cannot read a requirement into the statute that does not otherwise exist. 3
Further, we concur with the Council in its view that the collateral issue Mr. Powell raises, to wit, whether the Mayor has unilateral authority to determine whether the city's police car may be driven home by the police chief in the evening, does not arise under the Open Meetings Act and therefore cannot be resolved by the Attorney General pursuant to KRS 61.846(2).
Nevertheless, we find that the Nortonville City Council violated KRS 61.846(1) in failing to respond to Mr. Powell's December 11, 2002, open meetings complaint. That statute provides:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Mr. Powell's complaint conformed in every respect to the requirements found at KRS 61.846(1), and the Council offers no explanation for its failure to respond. The procedural requirements of both the Open Records and Open Meetings Acts, this office has often observed, are more than mere formalities. They are instead a part of the prompt and orderly processing of a request arising under KRS 61.870, et seq. , or a complaint arising under KRS 61.800, et seq. We urge the Council to review the cited provision to insure full compliance with its statutory duties under 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.
Delbert PowellP.O. Box 692Nortonville, KY 42442-0692
James L. Noel, MayorCity of NortonvilleNortonville City Hall199 South Main Street Nortonville, KY 42442
John C. Whitfield, AttorneyCity of NortonvilleWhitfield & Calvert, P.S.C.29 East Center Street Madisonville, KY 42431
William M. Cox, Jr.Whitfield & Calvert, P.S.C.29 East Center Street Madisonville, KY 42431
Footnotes
Footnotes
1 The minutes of the November 4 regular meeting read as follows:
Mayor Noel called the meeting to order, Council Member Kevin Whitehair led the opening prayer.
Roll Call: Present - Helen Stevens, Lastel Lewis, Kevin Whitehair, Bill Lester, and Andrew Holmes. Absent - Adell Hughlett.
Andrew made a motion, seconded by Kevin, to approve the reading of the minutes from the regular meeting held on 10-07-02 and the special called meeting held on 10-08-02. All voted in favor.
OLD BUSINESS:
Mayor Noel announced that the city expects an announcement on Friday from the government that the CDBG grant money has been approved for the new sewer plant.
Mayor Noel announced that the street paving should begin next week.
NEW BUSINESS:
There was no new business conducted.
Mayor Noel adjourned the meeting at 7:30 p.m.
2 There is no indication in the faxed transmission that Mr. Powell provided the Mayor or Mr. Cox with a copy of his amended appeal.
3 We do, however, note that the minutes reflected discussion concerning CDBG grant money and street paving upon which no action was taken. It is unclear on what basis the Council selectively determines to include discussion in the minutes of its meetings.