Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Muldraugh City Council violated the Open Meetings Act in failing to strictly comply with the notice requirements set forth at KRS 61.823 prior to its January 19, 2004 special meeting and KRS 61.846 in failing to respond to the complaint in which this violation was alleged. For the reasons that follow, we find that the Council violated both provisions of the Act.
On January 20, 2004, Randy Johnson submitted a written complaint to Mayor Danny Tate in which he alleged that the Muldraugh City Council violated KRS 61.823 when it failed to post written notice of its January 19 special meeting on the building in which the meeting was held. As a means of remedying the alleged violation, Mr. Johnson proposed that the Council "declare void any action taken . . . at that meeting and schedule another meeting to properly notify the public and properly post the notice on the building [where] the meeting is to be held." Having received no response to his complaint, Mr. Johnson initiated this appeal on January 27, 2004.
By letter dated January 29, 2004, Muldraugh City Clerk/Treasurer Caroline J. Cline responded to Mr. Johnson's complaint "because [she is] the responsible person for preparing for special meetings." She explained:
On January 16, 2004, prior to the special called meeting on January 19, 2004, I posted a notice on the inside of the door at Muldraugh City Hall, the location where all meetings usually take place. The notice stated the special meeting would be at the Muldraugh Fire House. KRS 61.823(4)(b) states a written notice shall be posted in the building where the special meeting will take place. Because the Muldraugh Fire Department is not a building open to the public during regular business hours, I felt the appropriate place to post the notice was in City Hall, the main headquarters of all City property and where all residents would have the opportunity to view the notice. Because of his interest in the subject matter of the special meeting, Mr. Randy Johnson was also personally notified, by myself, on Friday, January 16.
Ms. Cline attached a copy of a January 29 response prepared by Mayor Tate, and directed to Mr. Johnson, expressing his support for the "procedures for handling the special called meeting." It was Mayor Tate's position that "the notice was posted in the appropriate place." We disagree.
It is the decision of this office that the notice posted by the Muldraugh City Council was only partially consistent with the requirement codified at KRS 61.823(4)(b). That statute provides:
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.
In construing the provisions relating to notice, 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, including the requirement that the written notice of the special meeting, consisting of "the date, time, and place of the special meeting and the agenda," 1 be posted in two locations: the building where the special meeting will take place and the building which houses the headquarters of the agency. KRS 61.823(4)(b) . The Open Meetings Act does not make an exception for special meetings to be held in buildings that are not open to the public during regular business hours, and the fact that the Council's January 19 special meeting was conducted in such a building did not relieve the Council of its statutory obligation. However well-intentioned its efforts in this regard, the Council did not comply with the strict letter of the law in posting notice of its special meeting in only one location.
Further, we find that the Muldraugh City Council did not comply with the strict letter of the law, as codified at KRS 61.846(1), when it failed to respond to Mr. Johnson's written open meetings complaint. That statute provides, in part:
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. . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
In his January 27 letter of appeal, Mr. Johnson specifically complained about the Council's failure to respond to his January 20 complaint, and neither Ms. Cline, in her letter to this office, nor Mayor Tate, in his belated response to Mr. Johnson, refuted this allegation. As the Kentucky Court of Appeals has noted with reference to the procedural requirements of the Open Records Act, in a holding that applies with equal force to the procedural requirements of the Open Meetings Act, "[t]he language of the statute directing agency action is exact." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It requires the agency to issue a written response within three business days of receipt of the complaint, and the failure to do so constitutes a violation of the Open Meetings Act. 96-OMD-261; 97-OMD-43; 00-OMD-142. Having so concluded, however, we remind the parties that in adjudicating an open meetings dispute the Attorney General's function is limited to issuing a decision stating whether the public agency violated provisions of the Act. KRS 61.846(2); 97-OMD-90. The Attorney General is not authorized by statute to declare actions taken at an improperly conducted special meeting void or otherwise impose penalties for violations of the Act. 97-OMD-90; 00-OMD-109.
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 proceedings.
Randy Johnson4 Howard DriveBrandenburg, KY 40108
Danny J. Tate, Mayor120 South Main StreetP.O. Box 395Muldraugh, KY 40155-0395
Lori Kinkead, City Attorney550 W. Lincoln TrailRadcliff, KY 40160
Caroline J. ClineCity Clerk/TreasurerCity of Muldraugh120 South Main StreetP.O. Box 395Muldraugh, KY 40155-0395
Footnotes
Footnotes
1 KRS 61.823(3).
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