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 Hurstbourne City Commission violated the Open Meetings Act in the disposition of Mayor Furman F. Wallace's October 5, 2004, complaint concerning the Commission's conduct prior to, and in the course of, its December 23, 2004, special meeting. 1 For the reasons that follow, we find that the record on appeal does not support the claimed violations.
In the late afternoon of October 5, Mayor Wallace hand-delivered a written complaint, in an envelope addressed to Commissioner Robert C. English, to an employee of the City of Hurstbourne in the city's offices. Mayor Wallace complained that on December 18, 2003, he was notified that the Commissioners wished to conduct a special meeting on December 23, notwithstanding the fact that the December 23 regular meeting had been cancelled "because of the holidays and there not being any pressing business." Because Mayor Furman had made plans to spend the holidays with his family out of town, he alleged that "[t]he notice of the special meeting provided insufficient notice for [him] . . . to reschedule the time of [his] visit" and therefore did not "compl[y] with KRS Chapter 61."
Mayor Furman next complained that the agenda for the special meeting was inconsistent with the requirements of KRS 61.815(1)(a) insofar as it identified as a topic for discussion: "Go into special 2 session to discuss a personnel matter on a specific person. " In support, he noted that in 04-OMD-179, the Attorney General determined that the Commission failed to observe the formalities for going into closed session "by announcing in open session, that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, or the discipline, or the dismissal of a employee of the agency, indicating which of these particular actions is contemplated." 04-OMD-179, p. 6, citing 99-OMD-49; 99-OMD-221; 02-OMD-6.
Finally, Mayor Wallace complained that although the agenda indicated that the Commissioners would retire to a closed session to discuss "a personnel matter on a specific person, " the minutes of the meeting indicate that "Mayor Pro-tem English recommended to the Commission that they remain in open session to discuss the personnel matter referred to in the agenda, " that such discussion took place, and that the Commission "directed the City Attorney to write a letter to the Mayor, directing him to respond in writing to several items raised in the meeting." 3 It was Mayor Wallace's position that in so doing the Commission violated KRS 61.823(3), which limits discussions at special meetings to those items listed on the agenda, and KRS 61.815(1)(c) which prohibits public agencies from taking final action in a closed session. He asserted:
The Commission then discussed the personnel matter in the open meeting and took a final action in directing that a letter be written. Therefore, this is a different item than the one mentioned in the minutes. The item in the minutes stated that they would be in closed session. However, the item in which a final action could be and was taken was not the same type of item as the one actually listed in the agenda.
[Sic.]
As a means of remedying these alleged violations, Mayor Wallace proposed, inter alia, that the Commission strictly comply with the requirements for conducting closed sessions, provide adequate notice of special meetings, including a clear statement of what is to be discussed at the special meeting, and declare "null and void the questions that were posed to [him] in this illegal action . . . ." Having received no response to his complaint, Mayor Wallace initiated this open meetings appeal by letter dated October 10, 2004, and received by this office on October 11, 2004.
On October 14, 2004, Hurstbourne City Attorney Foster L. Haunz responded to the allegations contained in Mayor Wallace's complaint and appeal. With reference to the city's alleged failure to respond to the complaint, Mr. Haunz noted that the city's "response to Appellant's complaint must have crossed in the mail with his appeal to the Attorney General," and attached a copy of the Commission's October 11 response. Mr. Haunz stated that the complaint was not delivered to the city's offices until close of business on October 5 when the City Clerk/City Administrative Officer, Commissioner English, and he were out of town. Further, he commented, no copy was mailed to Commissioner English's home, to the City Clerk/City Administrator, or to him. Because of the apparent lack of urgency, Mr. Haunz concluded, the city employee who received the complaint placed it in an in-box "checked periodically (certainly not daily) by the Commissioners." Nevertheless, upon actual receipt by a city official, Mr. Haunz advised, "[t]he complaint was . . . answered in a matter of hours . . . [and] placed in the Mayor's mail at city hall[,] . . . mailed to his home address [,] an email . . . sent to him . . . and a call [placed to him] by the City Clerk/CAO . . . [telling] him that the response was ready for his review."
Turning to the substantive allegations of Mayor Wallace's complaint, Mr. Haunz denied that the special meeting was "purposefully scheduled at a time [he] could not attend, " but was instead scheduled at a time necessary to insure vendors were paid before year's end and a time necessary to address "[his] various problems in the handling of city business . . . ." Continuing, Mr. Haunz observed that the Commissioners did "not believe that the inability of one of the five members of the City Commission to attend for whatever reason invalidates a special meeting, " and that the Commissioners "wanted [him] to attend to offer explanations . . . [but he] never offered any alternative dates."
With reference to the adequacy of the meeting notice vis-a-vis the description of agenda topics and matters publicly discussed, Mr. Haunz commented:
There was no closed session held during the meeting of December 23, 2004. We agree with Appellant that had there been a closed session, the specific statutory exception to an open meeting would have to be stated in detail, but that is simply not applicable. The city did nothing wrong. We know of no legal requirement that requires the city to consider every item on an agenda; it is simply prohibited from considering an item not on the agenda.
Because there was no closed session during the December 23 meeting, he reasoned, "no action [was] taken in a closed session. " Nor, Mr. Haunz maintained, did consideration of the personnel matter in open session "change[] a purpose of the special meeting as stated in the Notice of Special Meeting. " Because the Mayor was unable to attend the meeting and respond to the Commission's questions directly, he concluded, "the questions were submitted to [him] in writing[, and] . . . this action [was] encompassed within the statement of purpose and the agenda for the special meeting. " In sum, Mr. Haunz asserted, "gathering information on [the Mayor's] activity deemed inappropriate by the City Commissioners is not 'final action. '" On this basis, the Commissioners refused to implement the proposed remedial measures with the exception of those already implemented as part of the Commission's existing practice.
Having considered these issues, we find that the record on appeal does not support a finding that the Hurstbourne City Commission violated the Open Meetings Act, either procedurally or substantively, in the disposition of Mayor Wallace's complaint. Under the circumstances described in Mr. Haunz's letter to this office, we conclude that although the Commission exceeded the three day statutory deadline for agency response by one day, this apparent violation of KRS 61.846(1) 4 was mitigated by the omission of any reference to the nature of the enclosed correspondence in the unmarked envelope which Mayor Wallace delivered to the city's offices at the close of business on a day on which no city officials were present to retrieve it. Critical to this determination is the fact that the Commission took immediate measures to prepare a response to the complaint, once it was identified as such, and that the response was issued no more than twenty-four hours after the statutory deadline had elapsed. Under the worse case scenario, the Commission was dilatory in failing to check its in-box on a daily basis. However, absent proof of an intent to delay delivery, which is most unlikely under the circumstances, we are not prepared to say that the issuance of the Commission's response on the fourth day after delivery of the complaint constituted a violation of the Open Meetings Act. Nevertheless, we encourage the Commission to make every reasonable effort to insure that its responses to open meetings complaints are issued three business days after the day on which those complaints are received. Accord, 02-ORD-094, citing KRS 446.030(1)(a); 5 96-ORD-207; 99-ORD-188; 01-ORD-3; and 02-ORD-81.
Substantively, we find that the allegations leveled by Mayor Wallace against the Commission do not rise to the level of violations of the Open Meetings Law. Specifically, and with reference to the first allegation of his complaint, we find that Mayor Wallace's inability to attend the December 23 special meeting, due to personal obligations, did not render the December 18 notice of that meeting invalid or otherwise deficient. KRS 61.823(4)(a) is dispositive of this issue. That statute provides:
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.
Mayor Wallace does not question the mode of delivery of the notice, or the timeliness of his receipt of same, 6 acknowledging that he was notified on December 18 of the upcoming special meeting. Instead, he alleges that there was not sufficient time following delivery of the notice to enable him to reschedule his visit with his family, and that he was therefore precluded from attending the meeting. KRS 61.823 7 does not impose upon public agencies the duty to accommodate the personal schedules of all officials who serve them, and we cannot read such a requirement into the law. Mayor Wallace's inability to attend the special meeting due to the timing of the notice of that meeting did not constitute a violation of KRS 61.823(4)(a) so long as he received the notice at least twenty-four hours before the meeting was to be held. It is undisputed that the notice satisfied this requirement and no further analysis is warranted.
We find equally unpersuasive Mayor Wallace's argument that the agenda contained in the special meeting notice was inadequate because it did not satisfy the requirements found at KRS 61.815(1)(a), as construed by this office in 04-OMD-179. In essence, Mayor Wallace attempts to superimpose the requirements for going into closed session found at KRS 61.815 on the requirements for notice of special meetings found at KRS 61.823(3). With reference to the formalities that must be observed prior to conducting a closed session, KRS 61.815(1)(a) provides:
Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session [.]
As noted above, a public agency fulfills its obligations under this section, when it wishes to conduct a closed session discussion under KRS 61.810(1)(f), by announcing in open session that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, or the discipline, or the dismissal of an employee of the agency, indicating which of these particular actions is contemplated.
This degree of specificity is not required for an agenda appearing in the notice of a special meeting. In this regard, KRS 61.823(3) 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 actions at the meeting shall be limited to items listed on the agenda in the notice.
In construing this provision, the Attorney General has determined that "special meeting agendas [must] give fair notice of the particular topics to be discussed or acted upon." 01-OMD-175, p. 1. There, we concluded that:
Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as "old business," "new business," "open to floor," and "open to council" [, and that] such vaguely worded descriptions invite discussions and actions on topics without the limitations envisioned by the statute in a special meeting.
01-OMD-175, p. 5. Conversely, in 02-OMD-22 8 and 03-OMD-149, 9 we found that the language employed in special meetings agendas, though it might have been more specific, was not so vague as to preclude fair notice to the public. We find that the language employed by the Hurstbourne City Commission in its special meeting notice was more closely akin to the language approved in 02-OMD-22 and 03-OMD-149, than the language disapproved in 01-OMD-175. Clearly, fair notice to the public that the Commission would discuss personnel issues relating to a particular individual could be imputed from that language, and we find no violation of KRS 61.823(3).
Finally, we find that the Hurstbourne City Commission did not violate either KRS 61.823(3) or KRS 61.815(1)(a) in electing to discuss the personnel matter, originally scheduled to be discussed in closed session, in an open session. Although the Attorney General has made clear his disapproval of revising the agenda for a special meeting, in the course of the meeting, by adding agenda items, the Commission's decision to discuss the contemplated personnel matter in open session does not conflict with this holding. In 01-OMD-154, this office determined that a revision of the order in which matters on the agency are considered was not violative of the Act, reasoning:
[T]he statute can [not] be read so narrowly as to prohibit a public agency from revising the order of the agenda items to be discussed at a special meeting. KRS 61.823(3) does not place such severe restrictions on agency action, and we believe revision of the order of agenda items is permissible. This position reflects the simple reality that some flexibility must exist to accommodate agency members and meeting participants, and the demands of administrative efficiency.
01-OMD-154, p. 7.
Although factually distinguishable, we believe that the reasoning of this decision can be extended to the appeal now before us. We fail to see how either the spirit or the letter of the Open Meetings Act was violated, or the public's interest compromised, by the Commission's decision to remain on the record to discuss the personnel matter before it. Indeed, its decision to do so promoted the public's interest insofar as it enabled the public to scrutinize the Commission's conduct through the minutes of the open session, and any audio or video recording of same, neither of which would have existed had the Commission conducted its discussion in closed session. The Commission did not deviate from the agenda for its special meeting in such a way as to deprive the public of fair notice of the particular topics to be discussed. 10 We therefore find no violation of KRS 61.823(3). Further, we find KRS 61.815(1)(a), relating to the requirements for conducting closed sessions, completely inapposite, no closed session having occurred in the course of the December 23 special meeting. We agree with the Commission that because no closed session occurred at the special meeting, no action, final or otherwise, was taken in closed session, and Mayor Wallace's allegation, in this regard, is without merit.
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.
Furman F. WallaceMayor, City of Hurstbourne904 Col. Anderson Pky.Louisville, KY 40222
Robert C. EnglishCommissioner, City of Hurstboune304 Whittington Parkway, Suite 100Louisville, KY 40222
Foster HaunzCity Attorney, City of HurstbourneOne Riverfront PlazaLouisville, KY 40202
Footnotes
Footnotes
1 In his letter of appeal to this office, Mr. Wallace raises an additional issue relating to the inclusion of the item "All other business that may properly come before this special meeting" in the agenda for the Commission's January 20, 2004, special meeting. Because Mr. Wallace did not raise this issue in his original complaint, the issue is not ripe for review by this office. Mr. Furman may, however, appropriately raise this issue by submitting a new complaint to the Commission, and, if necessary, a new appeal to this office or the courts.
2 Although the Commissioners employed the term "special" to describe the session, we assume that their intent was to conduct a closed or executive session.
3 Mayor Wallace notes that the Commission elected to remain in open session because no members of the public were in attendance.
4 KRS 61.846(1) provides that upon receipt of an open meetings complaint, "the public agency shall determine within three (3) days, excepting Saturday, Sundays, ad legal holidays, . . . 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."
5 KRS 466.030(1)(a) provides:
In computing any period of time prescribed or allowed by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included.
6 Mayor Wallace does not allege that the meeting notice was not properly posted in accordance with KRS 61.823(4)(b) and we therefore do not address this issue.
7 Mayor Wallace also questions whether the special meeting notice satisfied the requirements of KRS 83A.140(7). Given our limited role in adjudicating open meetings disputes, to wit, issuing a decision stating whether the agency violated the provisions of KRS 61.805 to KRS 61.850, we cannot resolve this question.
8 Affirming University special meeting agenda topic reading "Board and Presidential Leadership ad hoc Committee report."
9 Affirming Site Based Council special meeting agenda topic reading "Policy and Bylaws."
10 We leave for another day, the question of whether an agency can identify a topic for discussion in open session on its special meeting agenda and subsequently elect to conduct that discussion in closed session. This, clearly, is a much closer question.