Request By:
W. W. Chilton, III
615 Rudy Lane
Louisville, KY 40207Louis A. Phillips, Mayor
City of Windy Hills
5614 Coach Gate Wynde
Windy Hills, KY 40207Foster L. Haunz
Haunz & Lucke
One Riverfront Plaza, Suite 2016
401 West Main Street
Louisville, KY 40202-4234
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the City of Windy Hills violated the Open Meetings Act at its meeting of August 9, 2004, by failing to conduct the meeting at a time and place "convenient to the public" and "provide meeting room conditions" which insofar as feasible allowed "effective public observation of the meeting" as mandated by KRS 61.820 and KRS 61.840. 1 When viewed in light of Knox County v. Hammons, Ky., 129 S.W.3d 839 (2004), the evidence of record does not support the claim that the actions of the City relative to the meeting in question violated the Open Meetings Act.
By letter directed to Mayor Lou Phillips on August 10, 2004, W. W. Chilton, III framed his complaint as follows:
Last night's meeting went as prescribed from a scheduling perspective, except the City's citizens were not provided nearly enough sufficient seating capacity. In fact, citizens were standing practically ten deep in the hallway leading to the fire station's garage, other citizens were in the outside hallway without access to the meeting room, and other citizens were peering in from the outside windows to get a peek at the proceedings. From the videotape of two visiting news channels, it is [easy] to verify the cramped quarters, whereby the center aisle was also practically ten deep.
In short, and not to mention your demand that no questions be asked and answered with respect to the sidewalk issue, the City's failure to provide adequate accommodations for its citizens, is a violation of the Open Meetings Act. Crowds of the size witnessed last night, in a room much too small, precluded the ability of some citizen(s) wishing to attend, and assuredly impaired the hearing and sight lines for many of those in attendance.
As explained by Mr. Chilton, the April meeting "was held in the fire station's upstairs meeting room, where a much larger meeting room is located" to accommodate the expected crowd. "Due to the City Attorney's inability to climb the stairs," however, the August meeting was moved downstairs "to its originally prescribed location" since the upstairs meeting room is not handicapped accessible. In Mr. Chilton's view, the August meeting was "of utmost importance to the community as a result of the pending sidewalk vote" so "the City was well apprised of the potential for an overflow [crowd] ." To remedy the alleged violation, Mr. Chilton suggested that the "results of [the vote] should be stricken from the record, and a replacement meeting [should] be ordered, but with sufficient accommodations."
Responding on behalf of the City, Mayor Phillips acknowledged receiving Mr. Chilton's request, which he characterized as a request to have the August meeting "voided due to the inability of all those present to be seated[,]" in a letter of the same date. As summarized by Mayor Phillips, the relevant facts are:
1. The City of Windy Hills, a city of the fifth class, has no city hall. The city records are kept in the personal residence of the City Clerk. There are no facilities there for public meetings.
2. By ordinance, the regular monthly meetings of the City Council are held at the offices of the St. Matthews Fire Protection District (a handicapped accessible meeting room) on the second Monday of each month.
3. The meeting of August 9, 2004, was held at the date, time, and place provided by Windy Hills ordinance.
4. In the usual course of business, there is normally around twice or three times the seats as there are attendees.
5. The meeting room used is the only one available [that is handicapped accessible] at the fire house and seats 40-50 people, leaving standing room for probably that many more. There are two entrances to the room, one an ordinary door from a small hallway, and the other in the form of an approximate[ly] eight (8) foot hallway leading to the fire truck bays, that hallway adding around 8 feet by 15 feet of standing room, then going back into the fire truck bay, a very large area with visual and hearing access to the meeting, particularly the officials at the front of the room.
6. The meeting facilities accommodated all those in attendance, either sitting or standing. The meeting lasted approximately one hour.
7. No city official was presented with any objection to the facilities. You, yourself were present standing near the council table, and made no objection to the facilities. One person in the rear did state that he/she could not hear when someone spoke softly and that was immediately corrected by having any speaker raise their voice. There is no sound system available. 2
8. The only persons standing outside were those who stayed after the meeting, mostly those who were upset with the vote in favor of having sidewalks along Rudy Lane, that vote being 4-2 with the entire city council present and voting.
9. The sidewalk issue has been on the agenda monthly since about March 2003, [with] residents recognized both for and against. The City has held two general public meetings in the auditorium of Christ United Methodist Church with perhaps 100 empty seats with a large attendance. Public comment was not accepted during this meeting. No one was therefore precluded from being heard or hearing (and seeing).
10. You attached a card to your letter that shows that persons were being invited to attend the meeting. The City did not receive that card and thus had no reason to know how widely it was distributed or the like.
Arguing that the City violated both KRS 61.820 and KRS 61.840, Mr. Chilton initiated this appeal from the City's disposition of his complaint. On appeal, Mr. Chilton disputes Mayor Phillips' factual account. More specifically, Mr. Chilton disputes Mayor Phillips' contention that "the meeting facilities accommodated all those in attendance" as well as his contention that no one was "precluded from being heard or hearing (and seeing)" given the previous meetings at which public comment was invited. According to Mr. Chilton, Mayor Phillips "incorrectly characterized" his complaint as he harbors "no complaint with the sufficien[cy of the] seating arrangements." Rather, Mr. Chilton cites "the insufficient seating capacity and the citizens standing practically ten deep, to illustrate the crux of [his] complaint." Some citizens planning to attend the meeting left the premises, or peered through the windows, "as the meeting room was simply too overcrowded." In Mr. Chilton's view, this constitutes a violation of both KRS 61.820 and KRS 61.840 . 3 Attached to Mr. Chilton's letter of appeal are affidavits from Mr. Herbert Mattingly, Ms. Teresa Stambaugh, and Ms. Kelly Sutkamp verifying his version of events. Also of record is a videotaped recording of the meeting at issue which the undersigned has viewed. Relying upon 97-OMD-28, Mr. Chilton seeks the relief available by virtue of KRS 61.848(5). 4
Upon receiving notification of Mr. Chilton's appeal from this office, Mayor Phillips supplemented his response on behalf of the City. To begin, Mayor Phillips emphasizes that the August meeting "was a regular meeting scheduled by city ordinance duly adopted and published. Ordinance 04-01, AN ORDINANCE RELATING TO ESTABLISHING THE TIME AND PLACE OF REGULAR MEETINGS AND AMENDING ORDINANCE 99-02." According to Mayor Phillips, Mr. Chilton and/or his associates had distributed "an anonymous pink flier" designed to encourage public attendance at the meeting which "cited a number of outright fabrications[.]" Acknowledging that "a larger than normal" crowd attended the August meeting, Mayor Phillips maintains that "the inability of those in attendance to see and hear what was going on is not only exaggerated[,] but false." To the contrary, "[t]here was room for all." From his perspective, Mayor Phillips could "see the windows with a view to the parking lot" and "saw no persons outside, except for those coming and going." Because he was "determined to maintain order and safety[,]" Mayor Phillips arranged for two police officers to be present at the meeting. Relying upon Hammons , the Mayor argues that the City fully complied with the relevant provisions of the Act. Applying the less stringent standard established by the Supreme Court in Hammons to the facts presented, as we must, this office concludes that the City held its meeting at a specified time and place sufficiently "convenient to the public" as mandated by KRS 61.820 and provided meeting room conditions which allowed "effective public observation" of its meeting on August 9, 2004, as mandated by KRS 61.840.
In response, Mr. Chilton elaborates upon his earlier arguments, namely, that the affidavit of Ms. Sutkamp, a new resident of Windy Hills, was voluntary and truthful, "citizens were peering through the windows" due to insufficient seating at the fire station, and the attendance was "triple or better" that of recent meetings "where practically a full house was in attendance" as confirmed by the affidavits of record. Given the "close relationship between" the Sidewalk for Safety campaign, Mayor Phillips and Councilman Skelton, "it is highly circumspect [sic]" that the City did not anticipate the large crowd in Mr. Chilton's view. In addition, the Mayor's assertion that the only people outside "were those who stayed after the meeting" is "grossly incorrect." According to Mr. Chilton, "the public has been denied valuable access to the truthful consequences of the sidewalk" since "this particular plan development only came about in the final design, and it has never been discussed publicly." 5
Turning to the sole issue presented for review, Hammons is directly on point as correctly argued by the City. Although 97-OMD-28, upon which Mr. Chilton relies, does substantiate his interpretation of KRS 61.820 and KRS 61.840, the Kentucky Supreme Court articulated a less stringent standard to be applied in this context than the standard adopted by this office in 97-OMD-28 and its progeny in Hammons . In a cross-appeal, the taxpayers/appellees in Hammons claimed that Knox County had violated the Open Meetings Act in passing an occupational tax ordinance and sought to have the ordinance declared void. Id . at 844. More specifically, the taxpayers argued that Knox County had passed the ordinance in violation of KRS 61.820 and KRS 61.840 by scheduling the special meeting of the Knox County Fiscal Court at which the ordinance was passed during the Daniel Boone Festival. Id . at 844. According to the taxpayers, Knox County did not conduct the meeting at a time or in a location that was "convenient to the public," and, therefore, the ordinance should be invalidated. Id. In significant respect, the events which prompted the taxpayers to file a cross-appeal in Hammons parallel those which culminated in the instant appeal. Id . at 841. As observed by the Court:
There is no doubt that the Daniel Boone Festival is a major event in Knox County attracting large crowds, and that the area surrounding the Knox County Courthouse is extremely congested during the festival week. The record reflects that available parking near the courthouse during the festival is virtually non-existent, and that it is inconvenient to maneuver through the festival area to reach the courthouse. Furthermore, the Appellees also claim that the special meeting violated KRS 61.840 because it did not allow "effective public observation" of the proceedings. It is undisputed that numerous citizens were not able to enter the crowded district courtroom and observed the proceedings from the hallway .
Id . (Emphasis added). Such is the case here. When viewed in context, however, these conditions did not constitute a violation of KRS 61.820 or KRS 61.840 . As the record on appeal presents no reason to depart from this governing precedent, the same outcome necessarily follows.
Agreeing with both the trial court and the Court of Appeals, the Supreme Court found "that the Knox County Fiscal Court could have chosen a more convenient time for the special meeting, one that did not coincide with a busy county festival. " Id . Even if holding the meeting at that time was necessary, the Court reasoned, the fiscal court could have held the meeting at a location that was more convenient than the county courthouse, which was "literally the epicenter of activity." Id . That being said, the Court nevertheless concluded that the fiscal court did not violate KRS 61.820 in holding the special meeting at the designated time and place nor did the meeting conditions violate KRS 61.840. Id . at 845. Of particular relevance here, the Court engaged in the following analysis:
. . . Kentucky's Open Meetings Act does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times. The intent of the open meetings statutes is to ensure that government business is not conducted in secret, that the public is adequately notified of the time and nature of government proceedings, and that interested citizens be afforded the opportunity to participate in such proceedings [in the relevant sense; see note 4]. In short, the open meetings statutes are designed to prevent government bodies from conducting [their] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require agencies to seek out the most convenient time or location.
Id . Because the meeting at issue met this standard, the Court concluded that Knox County did not violate "either the letter or the spirit" of the Open Meeting Act. Id .
Although the Friday of the week during which the Daniel Boone Festival was held and the Knox County courtroom were admittedly not the most convenient time and location at which to conduct the meeting, "it certainly was not an inconvenient time or location. The fact that a large number of citizens did attend proves this point." Id . 6 Likewise, the downstairs meeting room at the St. Matthews fire station was not the ideal or most convenient location for the meeting which prompted this appeal given the turnout which could have reasonably been anticipated considering the totality of the circumstances as evidenced by the videotape of the proceedings. 7 Contrary to the implicit assumption upon which Mr. Chilton's appeal is premised, however, that is not the standard by which this office must evaluate the actions of the City. Although the location at which the City held its August meeting was clearly not the most convenient, the location was also not inconvenient as evidenced by the large turnout. As in Hammons , the "meeting was announced to the public, and there is nothing on the record to indicate that persons wishing to attend or participate in the proceeding were effectively prevented from doing so." Id . Accordingly, it is the decision of this office that no violation of KRS 61.820 or KRS 61.840 occurred at the meeting held by the City on August 9, 2004.
A party aggrieved by this decision may appeal it by initiating an 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 party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.820 provides:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
KRS 61.840 provides:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
2 Even a cursory review of the record reveals that Mr. Chilton and the City offer disparate accounts of the meeting and related events. Although Hammons is determinative as to the primary issue presented for our review, this office is not equipped to resolve secondary factual disputes of this nature. In 03-OMD-178, the appellant maintained that most members of the public in attendance at the meeting in question were unable to hear the remarks of the Board members and the Board's failure to address that issue contravened KRS 61.840. Id., p. 16. In support of his claim, the appellant attached letters from six attendees who expressed varying degrees of dissatisfaction with the meeting room. Id. Acknowledging its statutory obligation to provide meeting conditions which allow effective public observation, the Board referenced the statements of various officials and attendees who were satisfied with the meeting room in support of its position. Id., pp. 16, 17. In relevant part, the Attorney General concluded:
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 v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997)], 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. . . .This assumes, of course, that every [reasonable] measure has been taken by the agency to [e]nsure effective public observation [which the City did given the limited resources available].
Ultimately, we cannot resolve this issue because of the conflict[ing] 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 [City] to take all appropriate measures to provide meeting room conditions that conform to the requirements of KRS 61.840 . . .
3 As explained by Mr. Chilton, "the sidewalk issue has been a subject of much discourse, heated at times[,] and has resulted in the highest attendance of any issue "in recent memory." According to Mr. Chilton, when developments of special interest have occurred "such as plans to review, pending tree removal or drainage discussions," attendance has been elevated so "larger than normal attendance should have been anticipated," necessitating a larger facility or satellite viewing room. In support of this claim, Mr. Chilton elaborates regarding the meetings held at Christ United Methodist Church, the postcard referenced by Mayor Phillips, and the distribution of a flier encouraging attendance, none of which affect our resolution of the narrow issue presented.
4 KRS 61.848(5) provides: "Any rule, regulation, ordinance, or other formal action of a public agency without substantial compliance with the requirements of KRS 61.810, 61.815, 61.820, and KRS 61.823 shall be voidable by a court of competent jurisdiction . (Emphasis added). Noticeably absent from this provision is any mention of KRS 61.840 upon which Mr. Chilton primarily relies in challenging the actions of the City. More to the point, this office is without authority to grant the relief requested as evidenced by the literal language of this provision. 03-OMD-125, p. 3; 00-OMD-109; 99-OMD-203.
5 Even assuming that Mr. Chilton is correct in his related assertion regarding the Mayor's alleged failure to "honor his commitment(s)," that is irrelevant for purposes of the analysis employed by this office in the context presented. To clarify, however, the Attorney General has recognized that "members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings," but the Open Meetings Act "does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency. " 95-OMD-99, p. 2. (Emphasis added). That being the case, whether "a public agency followed its own rules relative to public participation at a public meeting is not a matter which can be resolved by the Attorney General during the course of an appeal under the Open Meetings Act. " Id.
6 Here, the convenience of the time at which the meeting was held is not in dispute.
7 Aside from demonstrating that the meeting room was apparently filled to capacity, which is not determinative standing alone, the videotape of record neither confirms nor refutes the relevant claims of Mr. Chilton regarding the adequacy of the meeting conditions. In arguing that the citizens of Windy Hills should have the opportunity to "participate" in the conventional sense, Mr. Chilton misconceives both the requirements of the Open Meetings Act and the narrow scope of our review when adjudicating an appeal filed thereunder.