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 by failing to comply with the notice requirements set forth in KRS 61.823 prior to its May 12, 2003 special meeting. Based on the written record before us, we cannot conclude that the council violated KR 61.823 by failing to provide written notice of the meeting to the media organization which had filed a written request to receive notice of special meetings. The issue before us is factual, and not legal, in nature and therefore cannot be resolved by this office in an open meetings appeal.
On May 12, 2003, Delbert Powell submitted a complaint to the presiding officer of the Nortonville City Council, Mayor James Noel, in which he alleged that the council failed to notify the media of its May 12 special meeting. As a means of remedying this violation, Mr. Powell proposed that "any actions, votes, or discussion at this special meeting . . . be declared null in void." In a response dated May 14, 2003, Mayor Noel advised Mr. Powell that the council "has one media contact on file . . . and that media [contact] was PROPERLY contacted well in advance of the 24 hour notice that is required." (Emphasis in original.) Unconvinced, Mr. Powell initiated this appeal, asserting that he "contacted the media contact and was assured there had been no fax or telephone call concerning this meeting on May 12."
In supplemental correspondence directed to this office following commencement of Mr. Powell's appeal, Nortonville City Attorney John C. Whitfield furnished this office with "a copy of the notification made to The Madisonville Messenger giving The Messenger notice that is required under the open meeting law," and expressed his confidence "that this will evidence that the City of Nortonville complied with the proper requirements of the open meetings act." 1 Mr. Whitfield also enclosed a copy of the transmission verification report, dated May 8, and identifying the recipient's fax number as one that we have confirmed belongs to The Madisonville Messenger.
The Kentucky Court of Appeals has recognized that "the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. " E. W. Scripps Company v. City of Louisville, Ky.App., 790 S.W.2d 450, 452 (1990). Echoing this view, the Kentucky Supreme Court has confirmed:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strictly letter of the law in conducting meetings of a public agency violates the public good.
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing E. W. Scripps Co., above. "Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to 'open government openly arrived at.'" 99-OMD-146, p. 4, citing Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N. J. Super. Ch. 1982).
To promote this goal, the Open Meetings Law establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. KRS 61.823 provides, in relevant part:
(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
(4)(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. . . .
(b) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
"The language of the statute directing agency action is exact." Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed. . . ." In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting.
The Nortonville City Council acknowledges that the Open Meetings Act mandates written notice to media organizations that have requested notification. The Act permits agencies to transmit notice by facsimile machine. The council's legal obligations are therefore not in dispute. 2 What is disputed is whether the notice was received by The Madisonville Messenger. Although Mr. Powell states that the "media contact" assured him that it received no fax, the record is devoid of evidence supporting that statement. Conversely, the council maintains that proper notice was faxed. This office has neither the ability, nor the authority, to resolve this factual issue.
Pursuant to KRS 61.846(2), the Attorney General is required to review a complaint and response in an open meetings appeal, and to issue a written decision "which states whether the agency violated the provisions of KRS 61.805 to 61.850." Such decisions involve the application and interpretation of the requirements of the Open Meetings Act, and are in the nature of questions of law. As noted, the legal requirements of the Act are not in dispute. The question before us is whether the Nortonville City Council sent the required written notice of a special meeting to be held on August 12 to The Madisonville Messenger at least 24 hours before that meeting. This question involves the resolution of a factual dispute which we can not, on the written record before us, resolve. Accord 99-OMD-167; 03-OMD-88.
If the Nortonville City Council did not give proper notice of its May 12 special meeting, its actions would be deemed to constitute a violation of the Open Meetings Act. If, on the other hand, the Nortonville City Council did give proper notice, and the failure of the newspaper to receive and print that notice resulted from a facsimile transmission error or simple omission, the council could not be said to have violated the Act. For the reasons articulated above, we are unable and unwilling to assign fault to the Council. We encourage the council to review KRS 61.823 to insure strict compliance with the requirements for conducting a special meeting, as well as the other requirements of the Open Meetings Act, in furtherance of the public good.
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 PowellBox 692Nortonville, KY 42442
James L. Noel, MayorCity of NortonvilleNortonville City Hall199 South Main StreetNortonville, KY 42442
John Whitfield, AttorneyCity of Nortonville29 East Center StreetMadisonville, KY 42431
Footnotes
Footnotes
1 The special meeting agenda reads as follows:
City of Nortonville
2 Neither Mr. Powell nor the Nortonville City Council address the requirement of posting written notice.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -