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 Danville Board of Ethics violated the Open Meetings Act by failing to comply with the notice requirements codified at KRS 61.823 prior to its June 23, 2003 special meeting. For the reasons that follow, we find that the notice provided by the Board was only partially consistent with KRS 61.823 and therefore constituted, to the extent of the deficiencies described below, a violation of the Open Meetings Act.
On behalf of his client, City Commissioner Ryan Owens, Richard Clay submitted a written complaint to Board Chairman Peter Bartuska on August 11, 2003, in which he alleged that the Board failed to give adequate notice of the June 23 meeting during the course of which the Board "conducted what amounted to a trial of three members of the city commission . . . ." Specifically, Mr. Clay complained that "[n]otice of the meeting was not publicized as required by KRS 61.823 ." As a means of remedying the alleged violation, Mr. Clay proposed that the Board "withhold any action as a result of the unlawful meeting." In addition, he proposed that the Board "comply with the Open Meetings Act before taking any steps as the Ethics Board of the City of Danville . . . [and] comply strictly with the Danville Code of Ethics governing proceedings before [the Board]."
In a response dated August 13, 2003, Chairman Bartuska denied Mr. Clay's allegations and rejected his proposed remedies. He referenced "the notification information that is attached, a copy of the letter that was sent to [Mr. Clay's] client and [an excerpt] from the State of Kentucky's Attorney General's web site (relating to rules governing open meetings]." Continuing, Chairman Bartuska observed:
I understand that you believe that [the Board] should have indicated in the minutes that this was an emergency situation KRS 61.823 but in fact that was not necessary because we were able to give proper notification to all parties involved . . . .
All parties were notified of the need to fulfill our additional responsibility relating to the answering of the complaint that was before us within the specific time frame.
Dissatisfied with the Board's response, Mr. Clay initiated this open meetings appeal restating his objections to the disputed meeting, including the omission of timely written notice per KRS 61.823(3) and (4), and requesting that this office "determine whether [his] request for remedy . . . should be honored by the Danville Board of Ethics."
In supplemental correspondence directed to this office following commencement of this appeal, Chairman Bartuska elaborated on the Board's position. He advised:
The special meeting of June 23, 2003 of the Danville Board of Ethics was set so that we would fully comply with the time line for responding to a complaint. We notified all of the parties that would be involved in writing, verbally (face to face) or over the telephone where appropriate. Mr. Clay's client was notified in writing and face to face. On Friday June 20 I spoke to Mr. Clay's client personally in the City Manager's reception area. All of these things were done within the twenty-four hour notification guidelines set up within the code.
As far as the public notification goes the City Clerk of Danville has the information that was sent to all of the papers and local radio stations which was also within the notification guidelines.
In support, the Board furnished this office with copies of the June 23 special meeting notification, the fax cover sheets reflecting transmission of the meeting notification on June 20, 2003 to those media organizations that had requested notification of Board meetings, and the fax confirmation sheets reflecting successful delivery of the notification in the period between 7:47 p.m. and 8:01 p.m. This documentation establishes less than full compliance with the requirements for special meeting notification codified at KRS 61.823(3) and (4).
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 strict 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.
With reference to the adequacy of special meeting agendas, this office has opined:
[A]lthough "there 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.
On more than one occasion, the Attorney General has observed:
94-OMD-50, p. 4.
. . .
"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 ," 92-OMD-1677, p. 3. 1 Moreover, 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. We believe 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.
01-OMD-175, pp. 5-7.
With reference to alternative modes of transmitting notice of public meetings, this office as observed:
At this time, the Open Meetings Act does not recognize the validity of an emailed meeting notice. In 00-OMD-227 [enclosed] , the Kentucky Access Subcommittee posted its meeting notice on the Subcommittee website, and we concluded that the notice was ineffective. We reasoned that the meeting notice could be posted on the website "in addition to, rather than in lieu of," the delivery requirements codified at KRS 61.823. The same reasoning applies to emailed meeting notices until such time as the General Assembly elects to statutorily recognize the "new" technology.
02-OMD-91, p. 5, note 5 (holding that emailed notices transmitted to Pewee Valley City Council members was deficient); see also, 01-OMD-141 (holding that public announcement of upcoming public hospital committee meetings at hospital board's regular meeting, and inclusion of meeting dates in hospital's calendar of events, did not satisfy the specific requirements of KRS 61.823).
This office has been advised that the Danville Board of Ethics conducts all of its meetings as special meetings, 2 and that Board members are notified of meetings by telephone and email. Persons against whom complaints have been leveled or allegations made, or who are otherwise invited to attend, like Mr. Clay's client, are contacted by letter and in person. Written notice, containing the date, time, and place of the meeting, and the meeting agenda, is faxed to media organizations. 3 Because the record on appeal does not reflect full compliance with KRS 61.823(3) and (4), we find that the Board violated the Open Meetings Act by failing to give adequate notice of its June 23 special meeting.
The Danville Board of Ethics violated KRS 61.823(3) and (4)(a) by failing to personally deliver, fax, or mail the members of the Board written notice of the June 23 meeting. Such notice as was communicated by telephone or email did not satisfy the strict legal requirements codified in that statute, and should have been utilized in addition to, rather than in lieu of, the statutorily required methods of communication. Moreover, the agenda which presumably accompanied the notice was deficient insofar as it did not contain sufficiently specific agenda items. As noted above, fair notice to the public of the matters to be discussed cannot be imputed from vaguely worded descriptions of agenda items such as "new business, " and such descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting. Finally, the record on appeal does not establish compliance with the posting requirement codified at KRS 61.823(4)(b). Unless the Board posted the written notice of its special meeting, including the date, time, and place of the meeting and the agenda, in a conspicuous place in the building where the meeting took place and the building which houses the Board's headquarters, at least twenty-four hours before the meeting occurred, its omission constituted a violation of the Act.
We find no apparent error in the timing of the notices transmitted to agency members by email or to media organizations by fax. The record reflects that these notices were transmitted at least twenty-four hours before the special meeting. Nor do we find any error in the timing or manner in which the Board notified Mr. Clay's client of the special meeting. Neither KRS 61.823 nor any other provision of the Open Meetings Act requires agency notice to interested parties or members of the public generally. See, e.g., OAG 79-121, p. 2 (holding that "Notice to the news media is notice to the public"); 99-OMD-167, p. 4, note 3 (holding that "the Open Meetings Act does not require a public agency to provide individual written notice to persons affected by the issues to be discussed at its special meetings"). Notice to persons against whom allegations have been made or complaints leveled is addressed in the city's ethics ordinance and the Board's rules of proceeding, but the city ordinance and the Board rules are not subject to review by the Attorney General under the Open Meetings Act as long as they do not represent an attempt to abrogate or abridge the agency's duties under the Act. See OAG 82-435; 03-OMD-187. 4
In closing, we note that the Attorney General is not authorized to "determine whether [Mr. Clay's] request for remedy should be honored by the Danville Board of Ethics." As we have so often noted, our review is confined to the issue of whether the agency violated the Open Meetings Act. See KRS 61.846(2) providing that the Attorney General shall issue "a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850;" see also, 93-OMD-49; 93-OMD-81, 94-OMD-111; 98-OMD-74; 02-OMD-135. Having determined that the Board violated the Act in failing to provide adequate notice of its June 23 special meeting, our duty is fully discharged.
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.
Richard Clay319 West Main StreetDanville, KY 40422
Rev. Peter Bartuska, Chairman Danville Board of Ethics209 Man-O-WarDanville, KY 40422
Donna GrovesDanville City Clerk P.O. Box 670Danville, KY 40422
Footnotes
Footnotes
1 KRS 61.823(5) recognizes a third type of meeting, the emergency meeting, occurring when circumstances "prevent compliance with subsections (3) and (4) of [KRS 61.823]." No legal authority exists in which the courts or this office have determined that circumstances were sufficiently grave to warrant a decision to call an emergency meeting. See 02-OMD-91 (enclosed) and authorities cited therein.
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2 This practice has been approved, but not encouraged, by the Attorney General in such decisions as 99-OMD-166 (enclosed) and 01-OMD-154.
3 The full text of thenotice of the meeting which is challenged in the instant appeal reads as follows:
AGENDA
ETHICS BOARD MEETING
June 23, 2003
1:00 p.m.
City Hall Conference Room
1. Preliminary Inquiry
2. New business
Executive Session:
Possible litigation, personnel
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4 By letter dated September 3, 2003, Mr. Clay rebutted certain statements appearing in the Board's response to his appeal. He observed:
My client, Ryan Owens, was contacted by telephone Friday or Saturday before the special meeting on Monday, June 23, 2003. He was invited to appear. Mr. Owens protested the notice was insufficient to engage counsel to represent him. The chairman said he could either appear or not. There was no writing at all given on Thursday, June 19, as Reverend Bartuska suggests. The next day, a Friday, the chairman says he spoke to Mr. Owens, who believes it was Saturday instead. This is not the sort of written notice to an interested party the city ethics ordinance (§ 2.287) requires.
Reverend Bartuska further claims public notification was made by the Danville City Clerk. That should have been no later than Thursday, when the letter to Mr. Owens is dated. My open records request for "All documents concerning any notice made under the Kentucky Open Meetings Act of regular, special, or emergency meetings of the Danville Board of Ethics" produced nothing more for this meeting than the enclosed "basic schedule" of that date. This document is not an "agenda" showing topics of discussion at the special meeting. It is not sufficient as statutory notice to the public of issues to be considered, nor is there any indication it was delivered to media. There was in fact no public notice in the local newspaper or over broadcast media, nor was anything posted in city hall, where the meeting was held. It would be surprising if the city clerk had more evidence of notice under the statute today than was produced in response to my request.
Although Mr. Clay's letter reached this office after this decision was prepared, we assure him that his comments were considered. Because this office is not empowered to review omissions in open records production in the context of an open meetings appeal, address questions relating to compliance with city ordinances, or otherwise resolve purely factual disputes, Mr. Clay's comments did not alter the outcome of this appeal.
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