Request By:
Richard G. Bowman
90 Benberry Ct.
Kuttawa, KY 42055Lee McCollum, Mayor
City of Kuttawa
P.O. Box 400
Kuttawa, KY 42055William R. Young
Attorney for City of Kuttawa
P.O. Box 472
Eddyville, KY 42038
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 Kuttawa violated the Open Meetings Act at its January 13, 2003, City Council meeting by failing to provide a meeting place convenient to the public and meeting room conditions that allow effective public observation of the public meeting. For the reasons that follow, we conclude that because the City acknowledged that the city council's meeting place was unsuitable under the circumstances of the January 13th meeting and has taken steps to correct the matter, that issue is moot. With respect to the second issue, we find that, in the absence of any evidence that the City was intentionally trying to obscure its discussions and business from the public at the meeting, we conclude there was no violation of the Open Meetings Act.
On January 28, 2003, Richard G. Bowman submitted a written complaint to Lee McCollum, Mayor, the presiding officer of city council meetings, in which he raised two complaints concerning the actions taken at the city council meeting held on January 13, 2003. Specifically, Mr. Bowman alleged that the meeting place was not suitable for effective participation of the public. He stated that late in the meeting the council voted to go into closed or executive session to discuss litigation matters, and "all the media and visitors were ordered out into the cold 20F winter night at the start of this undefined executive session in City Hall." In addition, Mr. Bowman complained that the "interaction between the Kuttawa city council, city hall staff and the mayor is inaudible and thus incoherent. " As a means of remedying these alleged violations, Mr. Bowman proposed "that the Kuttawa City government amend their procedures, and create, change, modify, or move to another location for a proper meeting location and environment . . . ."
In a letter dated January 30, 2003, Mayor McCollum responded to Mr. Bowman, advising:
This in reference to your letter labeled complaint letter 01, dated January 28, 2003. Since 1965, business has been successfully conducted with the public at the Kuttawa City Hall. Therefore, I see no cause for a change.
Following Mayor McCollum's response, Mr. Bowman initiated an appeal to the Attorney General appealing the Mayor's denial of his complaint "concerning the conduct of the City Council Meeting in an area, and with procedures where the public is prevented from active knowledge of what is going on, and without facilities & procedures to listen to the OPEN meeting, or to be inside and not forced out into the cold night during the CLOSED executive session. "
Upon receipt of this office's notification of Mr. Bowman's open meetings appeal, William R. Young, attorney for the City, provided this office with a response on behalf of the City. In his response, Mr. Young stated:
The complaint is totally without merit.
Unfortunately, the Kuttawa City Hall is very small, with only one meeting room and no waiting room. Admittedly, it was probably cold on January 13, 2003.
In the interim, arrangements have been made to permit visitors to wait in the fire department's garage adjoining the building.
The closed sessions of the Kuttawa City Council are generally of short duration and entered into toward the end of the regular agenda. It must be assumed that each citizen attending the City Council meetings arrived by a vehicle, either as the driver, or a passenger, which would afford protection from the elements during the short duration of the closed session.
Although the City has had the existing facilities for approximately 32 years, without known complaint, it does recognize its shortcomings. I am happy to state that the City recently purchased additional facilities in close proximity to the City Hall. This transaction was closed on January 20, 2003. In the near future, following renovations and alterations of the newly purchased facility, there will be an available waiting room and I even anticipate that coffee will be available.
It is unfortunate that something was said in the open meeting that was inaudible to Mr. Bowman. The City is not equipped with an audio amplification system and there have been occasions when someone seated at the far end of the room, or even a council member seated at the far end of the table could not hear exactly what was said and would ask the speaker to repeat themselves. Certainly, Mr. Bowman had this right and, apparently, failed to exercise it.
We address first Mr. Bowman's complaint that the meeting room was not suitable and his proposed remedy that the city council meeting be moved to another location for proper meeting and environment. The City has acknowledged that the meeting place was small and had shortcomings and has taken interim steps to correct this by making arrangements to permit visitors to wait in the fire department garage in the adjoining building and has purchased facilities near City Hall for use in the future in which there will be an available waiting room and other amenities. Since the City has acknowledged that the current meeting place was unsuitable for its meetings and circumstances that occurred at the January 13, 2003 meeting and has taken steps to correct matters, we conclude that this issue is moot. See 98-OMD-74, page 8, where we opined:
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 meetings 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.
We see no need for further discussion of this issue.
Next, we address Mr. Bowman's complaint that some of the interactions between the city council, city hall staff, and the Mayor were inaudible and thus incoherent. Although there is no requirement that a visitor to a public meeting speak up if he is unable to hear what is going on, we agree with Mr. Young's position that one normally would do so if he is unable to hear discussions of business or matters taking place before the city council. In the absence of any evidence that the City was intentionally trying to obscure its discussions and business from the public, we conclude there was no violation of the Open Meetings Act on this issue. Compare, 01-OMD-110 (holding that the agency violated the Act by intentionally engaging in whispered discussions of the public's business) and 99-OMD-196 (holding that local facilities planning committee failed to discharge its duty under the Act to allow effective public observation of its meetings when some of its members sat with their backs to the audience and no microphones were provided).
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.