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 Foley Middle School Site Based Decision Making Committee violated the Open Meetings Act in failing to give adequate notice of its February 17, 2004 meeting, originally scheduled for 6:30 p.m. but delayed until 7:00 p.m. For the reasons that follow, we find insufficient evidence in the record on appeal to support the claimed violation.
On February 20, 2004, Kim Chasteen submitted a written complaint to SBDM Committee Chairperson Arno Norwell in which she alleged that the Council failed to comply with the notice requirements codified at KRS 61.823 prior to its February 17 meeting which had been regularly scheduled to begin at 6:30 p.m. but was moved to 7:00 p.m. "making it a Special Meeting. " As a means of remedying the alleged violation, Ms. Chasteen proposed that "any action taken at the February 17, 2004 meeting be null and void and discussed at the next scheduled meeting."
In his February 25 response to Ms. Chasteen's complaint, Mr. Norwell explained:
The third Tuesday of every month is the regular meeting of the Foley Middle School Site Based Council. February 17th was the third Tuesday. Also on this particular evening we held our parent teacher conferences. Due to the conferences and other unanticipated reasons our meeting started at 7:00 p.m. At this meeting no action was taken. There was discussion of topics to be considered by the council at a later time.
In closing, Mr. Norwell indicated that the Council would honor her request by discussing these topics again at a special meeting or the next regular Council meeting. Shortly thereafter, Ms. Chasteen initiated this appeal.
In supplemental correspondence directed to his office following commencement of Ms. Chasteen's appeal, Madison County School Board Attorney, Patricia T. Bausch, acknowledged that the regularly scheduled meeting was delayed by parent-teacher conferences, but insisted that "[t]his delay in the meeting was not intentional nor was it done to deny the public access to the meeting but rather, to permit more access to the public." In a spirit of conciliation, Ms. Bausch indicated that the Council would set aside any "action" arguably taken at the February 17 meeting and discuss at a future meeting any topics discussed at the challenged meeting.
While we commend the Foley Middle School Site Based Decision Making Council for its willingness to implement remedial measures to satisfy the highest standards of agency accountability, we find that insufficient evidence exists to support Ms. Chasteen's position that the Council violated the Open Meetings Act or that remedial measures are warranted. We are aware of no legal authority directly on point, but note that in 99-OMD-153 this office held that the evidence was insufficient to support a claim that the Oldham County Board of Education violated the Act when it convened a regular meeting at its adopted starting time of 4:00 p.m. notwithstanding the fact that the meeting agenda stated that the meeting would begin at 6:00 p.m. The Board attributed the discrepancy to clerical error, noting that "the Superintendent does not have the authority . . . to change the approved meeting schedule . . . and no board action took place to amend the meeting time."
The Attorney General concluded that although it could be argued that the Oldham County Board of Education deviated from its regular meeting schedule when it issued an agenda indicating that the meeting would begin at 6:00, there was "little evidence to support a claim that this was the conscious intent of the Board." At page 5 of 99-OMD-153, we reasoned:
KRS 61.820 requires public agencies to adopt a schedule of regular meetings and to make that schedule available to the public. This, the Oldham County Board of Education has done. As 92-OMD-1677 and 92-OMD-1473 1 demonstrate, any conscious attempt to deviate from the regular schedule of meetings triggers the requirements of KRS 61.823 relative to notice and posting of a special meeting. . . . [A] special meeting can only be called by the presiding officer . . . or a majority of the members of the agency . . . .
The error that appeared on the [Board's meeting] agenda was apparently clerical in nature, and did not represent a conscious attempt to call a special meeting, or to exclude . . . the public . . . from the February 17 meeting.
Here, as in 99-OMD-153, we find that the Foley Middle School Site Based Council has adopted a schedule of regular meetings and that the challenged meeting was a regular meeting. We find no conscious attempt by the presiding officer or a majority of the members of the Council to call a special meeting or exclude the public from the February 17 meeting.
The thirty minute delay in convening the February 17 regular meeting of the council was occasioned by the parent-teacher conferences conducted earlier in the evening and an apparent desire to insure that all interested parties could attend the meeting in its entirety. We are not inclined to assign error for a half hour delay in starting time when such a delay could easily result from other unforeseen circumstances such as inclement weather. To hold otherwise would be tantamount to elevating form over substance, resulting in the unnecessary cancellation of properly "noticed" regular meetings. KRS 61.820. 2
Having so concluded, we remind the parties:
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. See E.W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990).
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Our decision today should not be construed as a license to randomly move meeting times up and back to suit the whims of agency members but as a narrow holding "reflect[ing] the simple reality that some flexibility must exist to accommodate agency members and meeting participants . . . ." 02-OMD-154, p. 7. In the interest of maximizing notice, and should this question ever recur, the Council may wish to post written notice on the meeting room door notifying the public, for example, that the meeting will convene at 7:00 p.m. to accommodate parents and teachers engaged in conferences. The Open Meetings Act certainly does not require more.
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.
Footnotes
Footnotes
1 In 92-OMD-1677, the agency's members voted to reschedule a regular meeting from September 21 to September 28. In 92-OMD-1473, the agency members voted to reschedule a regular meeting from July 23 to July 27 and back to July 23. In both cases, the Attorney General held that "when the public agency deviates from its regular meeting schedule and reschedules that regular meeting the rescheduled meeting becomes a special meeting. " 92-OMD-1473, p. 2.
2 In so holding, we note that repeated unforeseen "delays" in convening regular meetings of a public agency, suggesting a conscious disregard for the requirements of the law, could result in an adverse ruling by this office.