Request By:
W.W. Chilton, III
615 Rudy Lane
Louisville, KY 40207Louis A. Phillips, Mayo
City of Windy Hills
5614 Coach Gate Wynde
Windy Hills, KY 40207Foster L. Haunz
Haunz & Lucke
One Riverfront Plaza, Suite 2016
Louisville, KY 40202-4234
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Windy Hills violated the Open Meetings Act at its special meeting of April 17, 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 and in failing to comply with KRS 61.823(4)(b), relating to the posting of special meeting notices. For the reasons that follow, we find that the City violated the Open Meetings Act by failing to post the proper notices at the city clerk's house and by failing to respond to Mr. Chilton's complaints about the improper notices and that the meeting was held in a handicap inaccessible facility. We have insufficient evidence before us to address the issue of whether the special meeting was, in fact, held in a handicap inaccessible facility. However, we conclude that the content of the City's notice, posted in the front yard of the city clerk's home, did set forth the agenda of the special meeting, as required by KRS 61.823(3).
By letter dated September 22, 2004, W. W. Chilton, III, submitted a complaint to Mayor Louis A. Phillips that the City had violated the Open Meetings Act by failing to comply with the notice and posting requirements of KRS 61.823 and that the meeting was not held in a handicap accessible facility, and, thus, was not held in a place convenient to the public in violation of KRS 61.820 and would not allow for effective observation of the meeting by the handicapped as required by KRS 61.840.
In respect to the claimed failure to provide for adequate meeting conditions, Mr. Chilton complained that "the Special Meeting was held in a facility not meeting the Americans for Disabilities Act, a Federally mandated mechanism having been established to enforce this public agency obligation at every level of public procurement."
In his complaint, Mr. Chilton also alleged that the City had failed to meet the notice and posting requirements, asserting that:
. . . there was no agenda posted for the public's notification. Factually, per your hand written message posted only on an 8.5" x 11" sheet of paper, unreadable unless standing just feet away, being attached to a short steel rod located far from the street in the front lawn of the City Clerk's handicap inaccessible public meeting residence, very understandably stated that the only contemplated public action or notice, was as follows:
Aside from this inconspicuous public notice, the only other notification was faxed to the Courier-Journal (and possibly other local newspapers) the preceding day. There was definitely no public announcement that the City Council would be discussing any styled or prescribed future arrangement with 44 affected Rudy Lane landowners at any time during the Special Meeting. In fact, the announcement certainly states that there was no pending discussion on any other subject matter other than the threat of litigation, as the meeting " will immediately go into closed session ." Moreover, there was no public notification that the City Council would later come out of closed Executive Session for discussion of other issues where the citizens were allowed to witness. A responsible agenda should have been posted thereby stating to the citizens that they could instead expect to observe any public matter discussions, except however that there was no notification that any other styled discussion would indeed transpire after the close of the Executive Session ( emphasis added ). In short, the Special Meeting brought public notice to one topic of discussion, and that topic was discussion of the threatened litigation only!!
To cure the alleged violations, Mr. Chilton proposed the following remedy:
Your Administration can remedy the aforementioned violations of the Open Meeting Act by reconvening another Special Meeting, this time noticed to the public in full conformity of the Open Meetings Law and in a handicapped accessible facility. The City Council should discuss at the replacement Special Meeting any and all matters discussed during the previous improper session, including those tangential subjects addressed improperly in closed Executive Session on April 17, 2004. Further, any and all action taken at the April 17, 2004 meeting must be declared null and void, with respect to its formulation coming with no public scrutiny.
In a letter dated September 23, 2004, Mayor Phillips responded to Mr. Chilton's complaint. In his response, Mayor Phillips stated in part:
This matter has already been fully disposed of by your previous appeals to the Attorney General, most recently the Attorney General's letter to you dated September 15, 2004 wherein the Attorney General basically stated that they would not reconsider your complaint on the April 17, 2004 meeting.
You simply fail to accept the fact that the City, at its Special Meeting of April 17, 2004, discussed only its strategy to prevent the filing of a lawsuit by Lynn Renau and others (as she used the term "we") against the City, in its strategy meeting after much discussion decided the best way was to disseminate the true facts, then in fully open session formulated the true facts to be put out and termed those true facts a "Declaration of Policy and Intent." Can you even tell us what you believe was discussed that was improper, what those tangential matters were or you believe they were? I know of no tangential matters that were actually discussed.
?
You demand that the city "reconvene another Special Meeting. " There is absolutely no reason for the city to take this action as it would accomplish nothing but provoke more hostility. However, any councilman is free to move, for whatever reason or cause, to declare all action taken at the April 17, 2004 special meeting as null and void for it would not affect the city in any way.
Subsequent to the Mayor's decision not to implement the remedial measures proposed, Mr. Chilton initiated the instant appeal.
After receipt of notification of the appeal, Mayor Phillips provided this office with a response to the issues raised in the appeal. Elaborating on the City's position, Mayor Phillips explained, in relevant part:
This is the third appeal from the City of Windy Hills Special Meeting of April 17, 2004. It is the city's position that the matter has been fully heard on appeal, and that this appeal should be dismissed. See 04-OMD-147. The first appeal resulted in 04-OMD-146.
There is no difference on the merits. 04-OMD-146 has already held that the closed meeting itself was a legal one. The time for appeal to the circuit court has expired with no appeal having been made.
04-OMD-146 did state: "To the extent that the Council discussed topics tangential to the matter of heading off threatened litigation in closed session, those discussions were not authorized by KRS 61.810(1)(c)." We have already stated that tangential issues were not discussed in closed session. The Council, realizing that it was the distribution of deliberately false and misleading information that led to the litigation possibility (or likelihood) pursuant to the threat, searched for nearly two hours for a way to avoid litigation. However convinced the complainant may be to the contrary, there were no tangential issues discussed, and when it appeared that getting out the truth would be the best way of avoiding litigation, rather than a costly defense, the City Council immediately returned to open session.
When the Council returned to open session, it did not draft the Statement of Policy and Intent, but directed the drafting of a letter by the Mayor, Councilmen Thompson and Skelton, to correct the misstatements and thereby avoid the threatened litigation. This letter was to be run by the attorney for the City for legality. That letter later became the Statement of Policy and Intent, completely discussed in open session as to the points raised, but drafted by committee, and later mailed.
What more can be said? The City held a legal special meeting, gave proper legal notice of the meeting, went into closed session to discuss the threatened litigation (already held proper in 04-[OMD]-146).
We address first, the issue as to whether the City failed to conduct the April 17, 2004 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. Mr. Chilton asserts that the meeting was not held in a handicap accessible facility and thus violated these two provisions of the Open Meetings Act. The April 17, 2004 meeting was held at the home of the city clerk. The record before us is devoid of any proof that the meeting site was in fact inaccessible. Nothing beyond the bare claim that the special meeting "was held in a facility not meeting the American for Disabilities Act" and "the City Clerk's handicap inaccessible public meeting residence," is in the record before us. Assuming that the home was not handicap accessible, the record does not support that a handicapped member of the public was denied access to the meeting. Thus, we have insufficient evidence to address this issue. However, the City failed to respond to this complaint. The failure to respond to the handicap accessibility issue was a procedural violation of KRS 61.846(1).
Addressing the proper notification issue, Mr. Chilton complained that there was no agenda posted for the public's notification and the notice was attached to a steel pole and located in the front lawn of the of the city clerk's home. KRS 61.823(4)(b) provides that "written notice shall 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." As noted in 04-OMD-145, p. 3, the City of Windy Hills does not have a city hall and the city's records are kept at the personal residence of the city clerk. Nevertheless, posting the notice in a conspicuous place in the clerk's house and in the room in the house where the meeting was to be held was required by the statute. Even though posting the notice on a sign in the yard might have been more conspicuous than a technical compliance with KRS 61.823(4)(b), we find that the failure to post the proper notices at the city clerk's house, as required by the statute, was a violation of the Open Meetings Act.
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).
The fact that the City has no regular office open to the public during regular business hours and holds its regular meetings in another building may complicate compliance with the Open Meetings Act. However, we believe that a proper posting of the notice of the special meeting would have required that it be posted at the home of the city clerk, where its records are kept, and in the room in the house where the special meeting was to be held was required by the statute. Accordingly, we find the City violated the posting requirements of KRS 61.823(4)(b). In addition, the City failed to respond to this portion of Mr. Chilton's complaint. The failure to respond to the proper notice complaint was also a procedural violation of KRS 61.846(1).
However, we find that the City's notice of the special meeting, posted in the front yard of the city clerk's home, did comply with the requirements of KRS 61.823(3). That statute provides:
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.
The City's notice advised that the special meeting of the city council would be held "on Saturday, April 17, 2004, 10 A.M., at the City Office, 703 Merrifield Rd." The notice stated that the agenda of the meeting would be "to discuss the Rudy Lane Sidewalk project. Because of the threat of litigation on this matter, the meeting will immediately go into closed session. " We conclude that the notice met the requirements of KRS 61.823(3) by providing the date, time, and place of the special meeting and the agenda.
Finally, addressing the issue as to whether the City violated the Open Meetings Act by discussing matters tangential to the closed session to discuss strategy and tactics relating to threatened litigation involving the construction of sidewalks in the Rudy Lane Sidewalk project. This issue was addressed in 04-OMD-146, in which this office held that "[t]o the extent that the Council discussed topics tangential to the matter of heading off threatened litigation in closed session, those discussions were not authorized by KRS 61.810(1)(c)." 04-OMD-146 is controlling on this issue. See 04-OMD-147, which so holds. Moreover, in a September 15, 2004 letter to Mr. Chilton, in response to his letter of September 12, 2004, which, in essence, requested a reconsideration of 04-OMD-146 and 147, we advised:
Pursuant to 40 KAR 1:030 Section 4, "[t]he Attorney General shall not reconsider under . . . the Open Meetings Law." As noted in the regulation, "[p]arties dissatisfied with a decision may appeal the decision to circuit court as provided in . . . KRS 61.848." We urge you to pursue this matter in the Jefferson Circuit Court per your expressed intent.
Having concluded that in certain instances set out above that the City violated the Open Meetings Act, 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. 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.
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.