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 Minor Lane Heights City Council violated the Open Meetings Act by failing to comply with the notice requirements codified at KRS 61.823 prior to its September 3, 2004, special meeting. For the reasons that follow, we find that the notice of special meeting was deficient and therefore constituted a violation of the Act.
On September 4, 2004, Councilmen John Benz and Benny Warfield submitted a written complaint to Mayor Fred D. Williams in which they alleged, inter alia, that the Council failed to provide written notice of the September 3 special meeting, consisting of the date, time, and place of, and agenda for, the meeting, failed to transmit written notice of the special meeting, by personal delivery, facsimile machine, or mail, at least twenty-four hours before the meeting, and failed to post written notice of the special meeting in a conspicuous place, in the building where the meeting took place and/or the building which houses the Council's headquarters, at least twenty-four hours before the meeting. As a means of remedying these violations, Councilmen Benz and Warfield proposed, inter alia, that the "actions taken by the City on September 3, 2004, be struck from the record and declared null and void."
In a response dated September 9, 2004, Mayor Williams denied the allegations in their open meetings complaint. He advised:
I personally contacted each council member more than twenty four hours before the September 3, 2004 6:00 p.m. meeting and advised them of the meeting and purpose. As stated in KRS 61.823(4)(1) [sic] as soon as possible written notice shall be given which was done after work on September 3, 2004, before the meeting. The agenda was unchanged from my verbal notice and this was the only issue for discussion.
Each person required to be given notice of the meeting and its purpose was notified more than twenty four hours before the meeting. No media organization had filed a request to be notified, nor does the statute require a general notice to the public. Both of these objections appear to have no basis as the press and the public both attended the meeting on September 3, 2004 at 6:00 p.m. at City Hall [sic].
(Emphasis in original.) As an alternative to the proposed remedial action, Mayor Williams suggested that "[i]f a majority of the City Council members wish to modify or change the actions they took on September 3, . . . they can do so at the next regular . . . or special meeting. "
Shortly thereafter, Councilmen Benz and Warford submitted separate written replies to Mayor Williams' denial of their complaint. Reaffirming several of his original arguments, Councilman Benz emphasized that he "did not receive notice of this meeting in any form until approximately 11:00 AM the day of the meeting, when [he] came to the City Hall Annex and inquired if there was a meeting." Councilman Warford focused on the deficiencies in the posting of the written notice of the special meeting, noting that the "posting of the notice inside of City Hall after work on the day of the meeting in no way complies with KRS 61.823(4) . . . [since] no one had a chance to see or read the notice . . . ." Unable to resolve this dispute, Councilmen Benz and Warford initiated this open meetings appeal by letter dated September 14, 2004, and received on September 20, 2004.
In supplemental correspondence directed to this office following commencement of the appeal, City Attorney Mark E. Edison elaborated on the Minor Lane Heights City Council's position. He advised:
On August 30, 2004, the City Council of the City of Minor Lane Heights held a Special Meeting to establish a procedure to address an issue of public interest. Council Member Benz read the proposal and Council Member Warford made the motion which was approved, establishing this procedure. On August 31, 2004, Council Member Benz appeared at City Hall and requested that a Special Meeting be held on September 3, 2004, to address some changes he felt were needed to the August 30, 2004, motion. Mayor Williams agreed to call a special meeting for September 3, 2004, at 6:00 p.m. to permit Council Member Benz to present this requested change to the other City Council Members.
Based on the attached affidavit of Mayor Williams telephone notice was given to each City Council Member at least twenty four hours prior to the September 3, 2004, 6:00 p.m. meeting. Written notice and the agenda of this meeting was posted at City Hall, 8710 Destiny Cove, Louisville, Kentucky 40229, between 10:00 a.m. and 11:00 a.m. on September 3, 2004.
The written agenda of the meeting attached hereto was not changed from the verbal notice given but was not presented to each Council Member until they appeared for the September 3, 2004, 6:00 p.m. meeting.
The Mayor did provide notice of the meeting orally to each Council Member. Written notice was provided to the public and City Council Members although not 24 hours prior.
On behalf of the City of Minor Lane Heights, Mr. Edison asserted that "[t]he City . . . substantially complied with the Open Meeting statutes." 1 Respectfully, we disagree.
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. KRS 61.823 provides, in relevant part:
(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
(4)(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. . . .
(b) 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.
"The language of the statute directing agency action is exact."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed . . . ." In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting.
The Council maintains that it substantially complied with these requirements by orally notifying most of the Council members of the special meeting, in person or by telephone, at least twenty-four hours before the meeting. The Council frankly acknowledges that no written notice was transmitted prior to the meeting. In 03-OMD-197, this office held that the Danville Board of Ethics violated the Open Meetings Act by notifying its members of special meetings by telephone or email, concluding that such notice "did not satisfy the strict legal requirements codified in [KRS 61.823(3) and KRS 61.823(4)(a)], and should have been utilized in addition to, rather than in lieu of, the statutorily required methods of communication." 03-OMD-197, p. 7. We referenced an earlier decision in which the Attorney General rejected the use of emailed meeting notices, observing:
At this time, the Open Meetings Act does not recognize the validity of an emailed meeting notice. In 00-OMD-227, the Kentucky Access Subcommittee posted its meeting notice on the Subcommittee website, and we concluded that the notice was ineffective. We reasoned that the meeting notice could be posted on the website "in addition to, rather than in lieu of," the delivery requirements codified at KRS 61.823. The same reasoning applies to emailed meeting notices until such time as the General Assembly elects to statutorily recognize the "new" technology.
02-OMD-91, p. 5, note 5 (holding that emailed notices transmitted to Pewee Valley City Council members was deficient) ; see also, 01-OMD-141 (holding that public announcement of upcoming public hospital committee meetings at hospital board's regular meeting, and inclusion of meeting dates in hospital's calendar of events, did not satisfy the specific requirements of KRS 61.823). Because the Open Meetings Act does not recognize the validity of oral notification, delivered in person or by telephone, we find that the Council violated KRS 61.823(3) and KRS 61.823(4)(a), requiring written notice of special meetings to be delivered personally, by fax, or by mail. 2 Consistent with the cited authorities, oral notice may be utilized in addition to, but not in lieu of, the statutorily required methods of communication.
Further, we find that the Council violated KRS 61.823(4)(b) in failing to post written notice of the special meeting in a conspicuous place in the building where the meeting was to take place and the building housing its headquarters at least twenty-four hours before the meeting. Accord, 99-OMD-166; 04-OMD-029; compare, 00-OMD-142; 03-OMD-250. Again, the Council frankly acknowledges that written notice was posted only eight hours before the scheduled meeting time. We cannot agree that this belated posting constituted strict, or even substantial, compliance with the explicit requirements of the Open Meetings Act. Nor can we agree that the availability of the written agenda for the special meeting on the posted meeting notice satisfied the requirement that the Council provide written notice, including the date, time, and place of the meeting, and the agenda for the special meeting to the Council members at least twenty-four hours before the meeting. The duty to post written notice of special meetings is a separate and independent legal obligation of a public agency codified at KRS 61.823(4)(b), and the Minor Lane Heights City Council fulfilled neither this requirement, nor the requirement relating to delivery of written notice to agency members codified at KRS 61.823(4)(a). For these reasons, we find that the Council violated the Open Meetings Act.
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.
John Benz8723 Wisdom LaneLouisville, KY 40229
Benny Warford11405 Courage CourtLouisville, KY 40229
Mayor Fred D. Williams, Sr.City of Minor Lane Heights/Heritage Creek8710 Destiny CoveLouisville, KY 40229
Mark Edison216 S. Buckman StreetShepherdsville, KY 40165
Footnotes
Footnotes
1 In a supporting affidavit, Mayor Williams stated that he:
personally contacted Council Members Jane Williams, Tracy Nixon, and Wilbur Johnson all of whom advised the date, time, and item for discussion were suitable. I left a message on the answering machine of Council Members Danny Cresswell and Benny Warford. Council Member Benny Warford returned my call on Thursday, September 2, 2004, at 5:41 p.m.
. . .
The Agenda attached hereto was posted in City Hall on September 3, 2004, between the hours of 10:00 a.m. and 11:00 a.m. by City Clerk Jenifer Fizner.
From and after the posting of the call of the meeting and the agenda, it was available to all City Council Members; however, I do not believe any Council Member received a copy until they arrived for the September 3, 2004, meeting.
2 Given the disparities in the proof presented in the record on appeal relative to the timing of the oral notice, we cannot conclusively resolve the question of whether that notice was also untimely. Clearly, as to some members of the Council notice was not received at least twenty-four hours before the meeting and was, to this extent, deficient.