Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Harlan County Board of Education violated the Open Meetings Act at its May 6, 2003 meeting by failing to provide meeting room conditions that would allow effective public observation of the meeting, as required by KRS 61.840, and whether the Board further violated KRS 61.846(1) of the Act by failing to respond to Roy Silver's written complaint to the presiding officer of the Board that the May 6th meeting had violated the Act by failing to provide proper meeting room conditions. For the reasons that follow, we find that although the evidentiary record precludes us from resolving the claimed violation of KRS 61.840, the record supports the claim that the Board violated the Act by not responding to Mr. Silver's complaint, as required by KRS 61.846(1).
On December 8, 2003, Mr. Silver submitted a written complaint to Gary Farmer, Chairperson of the Harlan County School Board, in which he stated:
I am writing to inform you of a violation of the Open Meetings Act that needs to be corrected. The Harlan County Board of Education meeting of 6 May 2003 violated the Open Meetings Act when only the Chairperson of the Board had a working microphone. The other members of the Board did not have working microphones. Those attending the meetings could not hear the committee's discussion or vote on item "No. 126 Facility Plan and Waiver Request." The Harlan County Board of Education violated the Act by not furnishing meeting room conditions that permitted effective public observation of this public meeting. The Board's action is in violation of KRS 61.840. . . .
To remedy the alleged violation, Mr. Silver asserted that the Board should declare the vote on "No. 126 Facility Plan and Waiver Request" null and void and hold another public meeting and vote again on the plan.
In his letter of appeal, dated December 15, 2003, Mr. Silver stated that, as of that date, he had not received a written response, as required by KRS 61.880(1), and his first letter, mailed to Mr. Farmer, was not accepted by the Harlan County Schools Board of Education and on the envelope it was marked "refused" and "return to sender" with a note on the envelope that stated "not for county board."
After receipt of Mr. Silver's letter of appeal, Susan Turner Landis, attorney for the Board, provided this office with a response to the issues raised in the appeal. In her response, Ms. Landis, in relevant part, advised:
As for Mr. Silver's allegations that the Harlan County Board of Education was in violation of the Kentucky Open Meetings Act, the Board and Chairman Gary Farmer, deny that there has been any such violation. The Board's records of the May 6th, 2003 meeting clearly show that it was open to the public. A large crowd was anticipated for this meeting as one of the main issues to be discussed dealt with the question of consolidating the high schools in the Harlan County School System. This particular meeting was moved to a facility that would sufficiently accommodate the expected crowd.
Mr. Farmer states that during no portion of this meeting did anyone in attendance complain of an inability to hear and or understand any part of the proceedings including statements made by any of the Board Members or questions asked of the Board Members and/or statements from the public. Mr. Farmer also asserts that it is not necessary for individual Board Members to have an individual microphone, as each Board Member had equal access to the microphone. It is the policy of the Harlan County Board of Education that a microphone system is set up in such a way to ensure that all board members have access to it and that they may be heard during their statements and/or inquiries that occur during any meeting. This was done at the meeting on May 6th, 2003 as with every Board Meeting and therefore, there have been no violations of the open meetings act as alleged by Mr. Silver.
We address first Mr. Silver's complaint that the Board failed to respond to his written complaint submitted to Mr. Farmer, the Chairperson of the Board. KRS 61.846(1) requires an agency response to an open meetings complaint in writing, and within three business days. 1 That statute provides, in part, as follows:
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.
In construing the operation of KRS 61.846(1), this office in 03-OMD-116, at p. 2, explained:
The statute does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period.
The facts before us in this appeal indicate that the Board did not respond at all to Mr. Silver's written complaint. KRS 61.846(1) requires an agency response to an open meetings complaint in writing, and within three business days. A letter directed to the Attorney General following initiation of an open meetings appeal does not satisfy the statutory requirement found at KRS 61.846(1). Accordingly, we find that the failure of the Board to respond to Mr. Silver's complaint in writing within the three-day period constituted a violation of KRS 61.846(1) and the Open Meetings Act.
Turning to the second issue in Mr. Silver's appeal, we find that the record is insufficient to support the claimed violation of KRS 61.840, and in view of the disparate nature of that record, acknowledge that we are not equipped to resolve the factual dispute presented.
Mr. Silver maintains that only the Chairperson of the Board had a working microphone and "[t]hose attending the meetings could not hear the committee's discussion or vote on item "No. 126 Facility Plan and Waiver Request."
The Board's response to this issue, advised that the Chairperson of the Board had indicated that "during no portion of this meeting did anyone in attendance complain of an inability to hear and or understand any part of the proceedings including statements made by any of the Board Members or questions asked of the Board Members and/or statements from the public."
In 03-OMD-178, we discussed an agency's inability to correct an inaudibility problem, when it is not brought to the agency's attention during the meeting and this office's inability to resolve an Open Meeting issues when we are presented conflicting facts. At page 17 of that decision, we observed:
The Board notes that the record is devoid of proof that any official was advised of the problem. While the courts have recognized that, in general "[t]here is no requirement of public objection found in the [open meetings] statute," Floyd County Board of Education, at 924, we agree that agency members or meeting participants whose statements are inaudible, but who are unaware of the problem, cannot reasonably be expected to rectify the problem. Compare, 97-OMD-28 (holding that board of education violated the Open Meetings Act by failing to address noise problem that had been brought to its attention, thus frustrating the public's ability to observe the meeting). This assumes, of course, that every feasible measure has been taken by the agency to insure effective public observation.
Ultimately, we cannot resolve this issue because of the conflict in the facts presented to this office by the parties. The problems associated with adjudication of this issue are compounded by the fact that our review is limited to the written record presented by the parties. KRS 61.846(2). The divergent factual accounts presented by the parties with regard to this issue compel us to conclude that the record is insufficient to support the claimed violation. Simply stated, we are not equipped to resolve this factual dispute in either party's favor, but encourage the Board to take all appropriate measures to provide meeting room conditions that conform to the requirements of KRS 61.840 and Mr. Watson and the six aggrieved attendees to address future concerns to the presiding officer of the agency whose public discussions are inaudible. 00-OMD-169; 02-OMD-2; 02-OMD-108.
Thus, under the facts presented by the parties in the instant appeal, we cannot say that the Board violated the provisions of KRS 61.840 and the Open Meetings Act on this issue.
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.
Distributed to:
Roy SilverP.O. Box GBenham, KY 40807
Gary Farmer, ChairmanHarlan County Board of Education251 Ball Park RoadHarlan, KY 40831
Johnnie TurnerSusan Turner LandisP.O. Box 351Harlan, KY 40831
Footnotes
Footnotes
1 In his letter of appeal, Mr. Silver states that Mr. Farmer had not responded to his written complaint, as required by KRS 61.880(1). This statute applies to written responses to an open records request. The relevant statute requiring a written response to an Open Meetings complaint is KRS 61.846(1).
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