Request By:
John C. Combs
Perry County Schools
315 Park Avenue
Hazard, KY 41701Paul Alexander
Perry County Schools
315 Park Avenue
Hazard, KY 41701Dr. Donnie Spencer
c/o Supt. John Paul Amis
Perry County Board of Education
315 Park Avenue
Hazard, KY 41701Supt. John Paul Amis
Perry County Board of Education
315 Park Avenue
Hazard, KY 41701Alison C. Wells
Barret, Haynes, May, Carter & Roark, P.S.C.
113 Lovern Street
P.O. Drawer 1017
Hazard, KY 41702
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 Perry County Board of Education violated the Open Meetings Act by failing to give adequate notice of its July 30, 2004, special meeting. For the reasons that follow, we find that the record on appeal confirms some, but not all, of the violations alleged.
On August 2, 2004, two individuals acting on behalf of the complainants herein, Board members John Combs and Paul Alexander, hand-delivered a written complaint prepared by Messrs. Combs and Alexander to Dr. Donnie R. Spencer, Chairman of the Perry County Board of Education. The complainants alleged that the Board violated the Open Meetings Act in advance of its July 30 meeting by failing to provide them with written notice of the meeting at least twenty-four hours before it occurred, failing to identify the topics to be discussed at the meeting with sufficient specificity in the written agenda for the meeting, and engaging in a series of less than quorum meetings for the purpose of avoiding the requirements of the Act. 1 A handwritten notation on the complaint, signed by the individuals acting on behalf of the complainants indicates that "Dr. Spencer read [the] document [but] refused to sign and instructed me to take [the] document to Allison Wells [Board attorney]." The complainants treated Dr. Spencer's response as a denial of their complaint and initiated this appeal on the same day their complaint was served. Attached to their appeal is a fax transmission dated "Jul 29 '04 13:31" from Dr. Spencer to Superintendent John Paul Amis which reads as follows:
We need a special meeting before the end of July. Please arrange meeting for Friday, July 30, 2004 at 5:30 p.m.
AGENDA:
-redistricting, discussion and action
-vending machines, discussion and action
In correspondence directed to this office following commencement of this appeal, Board attorney Alison Wells responded to these allegations. She indicated that Board members Spencer, Fields, and Fugate acknowledge receipt of notification more than twenty-four hours before the meeting, and that "[a]ll other requirements of [KRS 61.823] were complied with as well." She characterized the agenda as "sufficient," explaining:
Redistricting was done by the Perry County Board of Education in approximately 1998. The Board members are all familiar with the process of redistricting and the agenda set forth the topic to be discussed.
With reference to the allegation concerning a series of less than quorum meetings occurring among Board members, she observed, "The Board Chairman advises that while he discussed the possible policy change with other Board members, he did so with each separately[, and t]herefore, there is no violation." Finally, Ms. Wells asserted that the open meetings appeal to this office "had not ripened" at the time of filing. In support, she noted that the complainants filed their appeal on the same day their complaint was served on Dr. Spencer without "allow[ing] the Chairman . . . to respond as set forth in subsection (1) of KRS 61.846."
Our review of the records on appeal confirms violation of KRS 61.823(4)(a) based on the failure to provide written notice of the July 30 special meeting at least twenty-four hours before the meeting to two of the five board members. Although the underlying facts are disputed, the record also confirms violation of KRS 61.810(2), relating to a series of less than quorum meetings, but only if the members attending one or more of the meetings collectively constituted at least a quorum of the members of the Board and the meetings were conducted "for the purpose of avoiding the requirements of [the Act]," and KRS 61.846(1), relating to the agency's duty to respond to an open meetings complaint in writing and within three business days, but only if Dr. Spencer actually refused to accept delivery of the complaint. The record on appeal does not confirm violation of KRS 61.823(3), requiring written notice of a special meeting that includes an agenda. That provision has been construed by this office to contemplate agenda items that are sufficiently definite to permit the public to fairly understand the purpose for which the special meeting is to be held. We find that the topics listed on the written notice of the meeting satisfied this standard.
KRS 61.823(4)(a)
The complainants allege, and the record on appeal confirms, that two board members did not receive written notice of the July 30 special meeting at least twenty-four hours before the meeting was conducted. 2 To the extent of this deficiency, the Board violated KRS 61.823(4)(a). On this issue, 97-OMD-90 is controlling. A copy of that decision is attached hereto and incorporated by reference.
KRS 61.810(2)
The complainants allege, and the record on appeal confirms, that private discussions of public business among board members occurred in advance of the July 30 meeting. If the members attending one or more of these meetings collectively constituted at least a quorum of the members of the public agency, and the record is silent on this point, and if these meetings were held for the purpose of avoiding the requirements of the Open Meetings Act, these meetings constituted a violation of KRS 61.810(2). On this issue, 00-OMD-63 is controlling. A copy of that decision is attached hereto and incorporated by reference.
The complainants allege, and the record on appeal confirms, that no written response was issued by the Board following the attempted delivery of their open meetings complaint. If , in fact, Dr. Spencer refused to accept service of the complaint, that action constituted a violation of KRS 61.846(1). On this issue, 04-OMD-029 is controlling. A copy of that decision is attached hereto and incorporated by reference.
KRS 61.823(3)
The complainants allege, but the record on appeal does not confirm, that the agenda items appearing on the written notice of the July 30, 2004, meeting were inadequate. Those items were identified as:
Redistricting, discussion and action
Vending machines discussion and action
In our view, these topics were described with sufficient specificity to insure fair notice to the public. On this issue, 03-OMD-149 is controlling. A copy of that decision is attached hereto and incorporated by reference. Compare 01-OMD-175; 02-OMD-22.
CONCLUSION
In sum, we find that the Perry County Board of Education violated KRS 61.823(4)(a). Further we find that if the contingencies described above were met, the Board also violated KRS 61.810(2) and KRS 61.846(1). However, we do not find that the Board violated KRS 61.823(3) insofar as the listed agenda items were sufficiently specific. 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; 04-OMD-029. 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; 04-OMD-029.
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 The complainants made additional allegations in the body of their complaint. These allegations generally relate to compliance with board policies and are not appropriate for review in an open meetings appeal. Pursuant to KRS 61.846(2), the Attorney General's decision in an open meetings appeal is restricted to determining "whether the agency violated the provisions of KRS 61.805 to 61.850."
2 In a faxed transmission directed to this office at 2:50 p.m. on August 13, 2004, Superintendent Amis advised that three, rather than two, board members did not receive notice at least twenty-four hours before the meeting. In support, he attached the affidavits of the Central Office Payroll Clerk, who delivered the notice, and the Assistant Superintendent, who fielded the Board member's inquiry concerning the delinquent notice.