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 Corydon City Council violated the Open Meetings Act in the disposition of Sharon L. Chancellor's August 19, 2004, complaint concerning the Council's failure to comply with the notice requirements for a special meeting prior to its April 8, 2004, work session, and to record minutes of that meeting. Because Ms. Chancellor's complaint only minimally conformed to the requirements found at KRS 61.846(1), we find no error in the Council's initial disposition of her complaint. As to the substantive issues raised in that complaint, we find that the Council has since acknowledged violation of the Open Meetings Act and agreed to strictly comply with the requirements of the Act at its meetings, that those issues are therefore moot, and that no further analysis of the issues is warranted.
In her August 19 complaint, Ms. Chancellor alleged that the Council violated the Open Meetings Act prior to the April 8 special meeting, denominated a "work session, " by failing to provide notification to the members of the Council, the media, and the public consistent with the requirements set forth at KRS 61.823(2), (3), and (4), and by failing to record the minutes of that meeting consistent with the requirement set forth at KRS 61.835. The second paragraph of Ms. Chancellor's complaint declared:
Proper notification of the Public, Media and Council Members would have kept the meetings legal. Proper Posting of the Meeting and the Agenda are required. Minutes should have been recorded for a record in the event they are requested by the Public.
In the third paragraph of her complaint, she asked for "a [sic] answer to these charges in a timely manner . . . KRS 61.846(1)."
On behalf of the Council, Corydon City Attorney William V. Maddox, II, responded to Ms. Chancellor's complaint by letter dated August 25, 2004. Mr. Maddox asserted that Ms. Chancellor's letter did "not meet the requirements, set forth in KRS 61.846(1) for a complaint under the Open Records [sic] Act because it fails to state a proposed remedy for the alleged violations." Because of this omission, Mr. Maddox asserted, "it would, of course, be impossible for the Corydon City Council to state whether it intended to comply [with a proposed remedy]." In support, he provided Ms. Chancellor with a copy of KRS 61.846 and 00-OMD-156, a decision in which the Attorney General declined to consider an appeal arising from an open meetings complaint in which no remedy was proposed. Shortly thereafter, Ms. Chancellor initiated this appeal, noting that she "believe[d she had] offered a remedy to the Council on how to hold the meetings in question legally."
In supplemental correspondence directed to this office following commencement of Ms. Chancellor's appeal, the Council reevaluated its position. Reaffirming its belief that Ms. Chancellor's complaint was deficient, insofar as the "remedies she proposes would have no affect on any current, or past, problems" and have since been implemented by the Council, Mr. Maddox nevertheless proceeded to address the substantive allegations of that complaint. He acknowledged that the Corydon City Council's failure to comply with the notice requirements prior to the April 8 special meeting and to record minutes of that meeting was improper, but maintained that the Council's "inadvertent failure to strictly comply with the Open Meetings Act . . . did not result in harm to the public . . . ." Further, Mr. Maddox observed, "the City of Corydon has now been complying with these proposals [for strict compliance with the requirements of the Open Meetings Act] for more than four months . . . ." Nevertheless, in the interest of "improv[ing] in its application of the law" and ameliorating Ms. Chancellor's concerns, the Council, through Mr. Maddox, agreed to conduct "[a]ny future special meetings . . . in strict compliance with the Open Meetings Act. " In so doing, the Corydon City Council mooted the remaining issues on appeal.
Although we do not agree that Ms. Chancellor's complaint was fatally flawed, we find that the complaint only minimally satisfied the requirements set forth at KRS 61.846(1). That statute provides:
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. . . . 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.
As noted in 00-OMD-156, upon which the Council relies, "the rules of procedure governing the . . . Open Meetings Act 'should be relaxed to permit the greatest possible access to this forum, and . . . a rule of substantial compliance should generally be applied." 00-OMD-156, p. 3, citing 92-ORD-1449, p. 2. Although inartfully drafted, Ms. Chancellor's complaint did, in fact, state a remedy aimed at insuring strict compliance with the requirements of the Open Meetings Act. This was sufficient, in our view, to trigger the Council's duty to respond.
The Council did so in a proper and timely fashion, focusing on the deficiencies in her letter of complaint rather than on the allegations set forth therein. However, upon receipt of this office's notification of Ms. Chancellor's appeal, the Council responded to these allegations, acknowledging violations of KRS 61.823(2), (3), and (4), and KRS 61.835 at its April 8 work session, and committing itself to strict compliance with these and the remaining requirements of the Open Meetings Act. Lest there be any lingering debate, we remind the parties to this appeal that the Attorney General has long recognized that a work session attended by a quorum of the members of a public agency at which public business is discussed or action is taken is an open, public meeting, and that unless the work session is a regularly scheduled meeting, within the meaning of KRS 61.820, it must be treated as a special meeting subject to all notice requirements appertaining thereto. 02-OMD-11, p. 5, citing OAG 78-411, OAG 82-91, 95-OMD-64, and 99-OMD-213. Having said this, we engage in no further legal analysis, the issues on appeal having been effectively mooted by the Council's agreement to strictly conform its conduct to the requirements of the Open Meetings Act. On the latter point, we refer the parties to 98-OMD-74, 98-OMD-119, and 04-OMD-072, holding that when a public agency concedes the open meetings error alleged, and agrees to implement the remedial measures proposed, the issue upon which the appeal is based becomes academic or moot.
We assume a modicum of good faith from both parties to an open meetings appeal: from the complainant in identifying violations of the Act and proposing remedial measures, and from the public agency in acknowledging those violations, where circumstances warrant, and adhering to its commitments relative to implementation of the proposed remedies. The record on appeal confirms that the Corydon City Council now clearly understands its duties under the Open Meetings Act, and that it has agreed to discharge those duties as the law requires. Should it depart from this commitment, Ms. Chancellor may submit a new complaint to Mayor Larry Thurby in which she states the circumstances constituting new violations of the Open Meetings Act, and proposes remedial measures. We are nevertheless hopeful that this will not become necessary.
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.
Sharon L. ChancellorP. O. Box 49Corydon, KY 42406
Mayor Larry Thurby110 Main StreetP. O. Box 196Corydon, KY 42406
William V. Maddox, IICity Attorney223 First StreetP. O. Box 618Henderson, KY 42419-0618