Request By:
Kim Chasteen
165 Dreyfus Road
Berea, KY 40403Arno Norwell, Principal
Foley Middle School
211 Glades Road
Berea, KY 40403Patricia T. Bausch
Sturgill, Turner, Barker & Moloney
155 East Main Street
Lexington, KY 40507-1300
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 Foley Middle School Site Based Decision Making Council violated the Open Meetings Act at its May 9, 2003 special meeting by allegedly discussing non-agenda items in the course of that meeting. For the reasons that follow, we find that although the Council should have employed more specific language in describing the sole agenda item, discussions at the meeting did not exceed the reasonable scope of that item as described. We therefore conclude that the record before us does not support the claimed violation.
On June 9, 2003, Kim Chasteen submitted a written complaint, dated June 6, to Arno Norwell, Principal of Foley Middle School and Chairperson of its Site Based Council, in which she alleged that "meeting items that were on the agenda [for the May 9 special meeting] were not the items covered at the meeting." As a means of remedying the alleged violation, Ms. Chasteen proposed that the Council "present the revised version of the Standardized Dress Code prepared by Foley parents at a future meeting in a public session."
In a response dated June 12, 2003, Mr. Norwell expressed his confusion "as to the true nature" of Ms. Chasteen's complaint, indicating that he could "neither accept nor deny [her] request." Acknowledging that the official agenda for the meeting was not identical to the draft agenda that he had previously provided to her, Mr. Norwell stated that "the sole item appearing on the agenda was the only item considered by the Council," to wit "Policy & Bylaws, " 1 and questioned whether she was alleging that "the item was not properly noticed and considered or . . . [that] some other item was acted upon that did not appear on the Agenda. "
Continuing, Mr. Norwell observed:
The only other action that took place during the May 9, 2003, meeting was on my part but it was not a formal action by the Council. As I am confident you recall, parents had asked that I provide Council members with a revised version of the Standardized Dress Code prepared by Foley parents. After I handed them out to the members, the proposed version was not discussed, acted upon, or even considered at the meeting. I merely took the opportunity while the members were present in a single gathering to accommodate the request of parents who had asked that I hand out their proposed standardized dress code.
Unconvinced, Ms. Chasteen initiated this appeal, noting that the special meeting was called "to change the first reading [of the dress code] from a vote to a consensus," but Mr. Norwell "also presented the revision of the . . . dress code that parents had prepared "without being asked to do so and notwithstanding the fact that "Mr. Banks and Mr. Well [were] ask[ed] to present this at the next scheduled meeting." She questioned whether Mr. Norwell could "legally present an item that is not on the agenda of a special called meeting and then say it was not a formal action by the council."
In supplemental correspondence directed to this office following commencement of Ms. Chasteen's appeal, Madison County Board of Education Attorney Patricia T. Bausch elaborated on the Council's position. She explained:
Ms. Chasteen correctly notes in her correspondence that the Agenda for the SBDM meeting was drafted in an attempt to cure an error by the Council. Previously, the Council had voted to adopt the student dress code. This was inappropriate action for the SBDM, and the correct action was to come to a consensus. In evaluating the appropriate resolution, Superintendent Caudill contacted Charles Edwards, Director of Leadership Development in Frankfort, Kentucky, for guidance in correcting the oversight that originally occurred. Thus, the formal agenda reflects the recommendation of Dr. Edwards for cure. Ms. Chasteen's concern regarding the difference in the "rough draft" and the official Agenda is unwarranted because it merely reflects a minor change in the wording.
It is true that the Agenda initially provided to Ms. Chasteen by Principal Norwell was not the official Agenda for the meeting. This was simply an oversight by Principal Norwell. Nevertheless, this is not really an issue herein as it is understood by the District. If we are correctly interpreting Ms. Chasteen's complaint and related appeal, her issue appears to be that something was considered during a special meeting that did not appear on the Agenda.
Admittedly, the Agenda could have been much more clear and definitive, but the District was doing its best to comply with the direction given by a recognized authority in the field to properly cure what was apparently an improper action by the Council. Thus, the sole matter for which the SBDM convened, as stated by Principal Norwell in his letter to Ms. Chasteen, was the dress code. Further, this was the sole matter considered during the meeting. The unofficial minutes (which have not been approved by the SBDM as of this date) reflect that the consensus was taken to approve the first reading of the dress code. This again was merely carrying out the necessary correction to the previous meeting's action. The unofficial minutes also note that "Mr. Norwell entered a sample version of the dress code proposed by the parent audience." There does not appear to be any action taken on that dress code other than a statement that the Council "agreed to review the proposal and discuss further at the next meeting." This clearly does not support the claim that the SBDM took inappropriate or illegal official action concerning the parents' proposed dress code.
We acknowledge that KRS 61.823(3) directs that "[d]iscussions and action at the meeting shall be limited to items listed on the agenda in the notice. " Clearly, there was neither official action nor discussion taken for any purpose other than pursuant to the call. Additionally, the minutes do not reflect any discussion or action that was outside of the Agenda item "Policy & Bylaws. " The delivery of the parents' proposal and agreement to review it at the next meeting was certainly within the call of "Policy & Bylaws. "
Having reviewed the record on appeal, we agree with the Council's analysis. Although as noted, and acknowledged by the Council, more specific language should have been employed in describing the sole agenda item, we find that all discussion at the meeting pertained to that agenda item and no violation can therefore be found.
In 01-OMD-175, this office was asked to determine if special meeting agenda items that included "discussion of old business, " "discussion of new business, " "open to floor, " and "open to counsel," were sufficiently specific to satisfy the requirements of KRS 61.823(3). There we concluded that the language of that provision, coupled with the statement of legislative policy codified at KRS 61.800, 2 and the Kentucky Supreme Court's declaration that "[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," mandated "special meeting agendas that give fair notice of the particular topics to be discussed or acted upon." 01-OMD-175, p. 1, citing Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997).
At page 5 of 01-OMD-175, the Attorney General recognized that in order to implement "the intent of the legislature in erecting the Open Meetings Act [and] ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies, " the Act establishes specific requirements which agencies must fulfill in advance of special meetings, including KRS 61.823(3) which provides:
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.
Citing E. W. Scripps Company v. City of Louisville, Ky.App., 790 S.W.2d 450, 452 (1990). Continuing, this office observed:
In construing this provision, the Attorney General has recognized that although "[t]here is no definition of the term 'agenda' and no explanation as to what constitutes a satisfactory agenda" in the Act, "'agenda' is defined in part in Webster's Third New International Dictionary (1966) as 'a list or outline of things to be done, subjects to be discussed, or business to be transacted.'" 97-OMD-43, p. 3. This definition, in our view, contemplates sufficient specificity in the description of the items to be discussed to insure fair notice to the public. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as "old business, " "new business, " "open to floor, " and "open to council." Further, such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
01-OMD-175, p. 5. We therefore concluded that "the practice of including open-ended agenda items like old and new business, or open to counsel and floor, is inconsistent with the natural and harmonious reading of KRS 61.823(3), as well as the statement of legislative policy codified at KRS 61.800, and the goal of maximizing notice to the public." Id. at 6, 7.
Applying these principles to an appeal in which an agenda item reading "Board and Presidential Leadership ad hoc Committee report" was challenged on the basis that it was not "sufficiently specific to insure fair notice to the public that a vote on extension of the President's contract would be conducted," in 02-OMD-22 we held:
While we believe that the [agency] might have employed more specific language in describing the contemplated action, namely the vote on extending the President's contract, in the meeting agenda, we are not prepared to say that the agenda item was so vaguely worded that fair notice could not be imputed to the public. Certainly, it cannot be equated with such vague descriptions as "old business, " and "new business. "
02-OMD-22, p. 7. Central to our analysis was the fact that the ad hoc committee had only one charge, and that charge was to "make recommendations to the [agency] concerning [the president's] contract, [and] it was apparent that action would be taken on the contract upon receipt of the committee's report." Id. Nevertheless, we urged the agency to "scrupulously comply with the notice requirements set forth at KRS 61.823," including the requirement of a written agenda aimed at "maximizing notice to the public." Id.
The facts of the appeal before us are more closely akin to the facts giving rise to 02-OMD-22. The Site Based Council might have employed more specific language in describing the agenda item, but that item, "Policy and Bylaws, " cannot be equated with such vague descriptions as "old business" and "new business. " Moreover, the record reflects that the parties to this appeal were fully aware that the meeting's sole purpose was to cure an error committed by the Council relative to the student dress code. Under these circumstances, we conclude that the description of the agenda item was sufficiently specific to insure fair notice to the public. We acknowledge that this is a very close question, and urge the Council to employ greater specificity in preparing agendas for special meetings in the future.
Having concluded that the special meeting agenda prepared by the Council was sufficiently specific, we turn to the question of whether any topics discussed at the meeting fell outside the scope of that agenda item. At page 6 of 01-OMD-175, this office recognized:
[T]he 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, or action on, agenda items.
In that decision, we concluded that vaguely worded agenda items such as "old business" and "new business" "invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting, " and that the topics discussed, and actions taken, at the meeting were unauthorized. 01-OMD-175, p. 5. Conversely, in 02-OMD-22 we concluded that based on the meeting agenda "fair notice could be imputed to the public that the [agency] would vote on the President's contract," 02-OMD-22, p. 1, and that the action did not exceed the scope of the challenged agenda item.
Again, we find that the facts of this appeal are more closely akin to the facts of the appeal in 02-OMD-22. Ms. Chasteen questions whether the Council's discussion of "Policy & Bylaws" properly included dissemination of the revised dress code that the parents prepared and an agreement to review and discuss the revision at the next Council meeting. We believe that it did. To hold otherwise flies in the face of logic and efficiency. Because the item under discussion was the student dress code policy and bylaws, we are unpersuaded that distributing a proposed revision to the dress code policy, to be discussed at the next Council meeting, exceeded the scope of discussion of that item, or that fair notice to the public could not have been imputed.
We do not agree with the Council that Ms. Chasteen's open meetings complaint was so vague as to preclude an adequate response/defense. The Council, in our view, identified the alleged violation and raised a successful defense thereto, thus undermining the position that "the true nature of her complaint" could not be determined. Because the Foley Middle School Site Based Decision Making Council's actions were consistent with the requirements of the Open Meetings Act, albeit minimally, we affirm its actions.
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 draft agenda identified the item as "Action per Council Policies and Bilaws [sic]." Whatever the reasons for the discrepancies between the two agenda, we agree with the Council that they were minor, and that ultimately this is not an issue that is capable of resolution under the Open Meetings Act.
2 KRS 61.800 provides:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.