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 Area Transportation Study Advisory Team violated the Open Meetings Act by failing to give proper notice of its March 14, 2005, special meeting, by excluding members of the public from that meeting, and by failing to respond to the open meetings complaint in which these violations were alleged. For the reasons that follow, we find that the Advisory Team violated KRS 61.823 in failing to give proper notice of the special meeting. Because the facts giving rise to the remaining allegations of the complaint are disputed, and the Attorney General is not, in general, equipped to resolve a factual dispute, we cannot conclusively determine that these allegations are substantiated. Nevertheless, we remind the parties that the practice of selective admission clearly contravenes the express mandate of the Open Meetings Act set forth at KRS 61.810(1). See, 00-OMD-219; 01-OMD-152. Further, we remind the parties that the procedural requirements of the Open Meetings Act, codified at KRS 61.846, are not mere formalities, but are an essential part of the prompt and orderly processing of a complaint arising under the Act.
On March 23, 2005, Furman F. Wallace faxed a written complaint to Metro Council Member Julie Raque Adams, as presiding officer of the Advisory Team, in which he alleged, inter alia, that the meeting was not properly noticed to the public and that "[m]embers of the public desiring to attend the meeting were turned away and the doors were locked. " As a means of remedying these violations, Mr. Wallace proposed that "[a] schedule of all regularly scheduled or special meetings be made available to the public," and that notices of Advisory Team meetings be sent to The Courier-Journal, each member of the Advisory Team, each mayor of an incorporated city within the 18th District, each commission or council of an incorporated city within the 18th District, and homeowners associations registered with the Planning Commission. Additionally, Mr. Wallace proposed that notice of meetings be posted on the door of the meeting place at least 24 hours before the meetings are scheduled to occur, and that "all other requirements . . . of special meeting [s] are followed." Having received no response to his complaint, Mr. Wallace initiated this open meetings appeal on May 18, 2005, questioning the Advisory Team's failure to respond and amplifying on the original allegations in that complaint. He maintained that "[t]he following actions were taken to exclude the public:"
. No public announcement of the meeting was given to the public.
. No public announcement of the meeting was given to the press.
. Members of the public were turned away at the door. At least one individual told me later that they found this to be very embarrassing.
. The doors to City Hall were then locked.
. Councilwoman Adams told me that I was not welcome at the meeting. After I politely explained to her that it was a public meeting and that I had a right to be there, she was very insulting to me. She said, "Furman, I am tired of dealing with you". I then said, "You have never dealt with me". To that she replied, "I hope I never have to."
Because the Advisory Team is a public agency for open meetings purposes, and because public business was discussed, and action taken, at the March 14 meeting, Mr. Wallace concluded that "a substantial and willful violation of the Open Meetings Act occurred . . . ."
In correspondence directed to this office following commencement of Mr. Wallace's appeal, Assistant Jefferson County Attorney Kris M. Carlton responded to the allegations in his complaint. With reference to the Advisory Team's failure to respond to the complaint, Ms. Carlton advised:
Mr. Wallace faxed the complaint, and it is not indicated that it was followed by a hard copy mail delivery to Council Member Adams. In fact, Council Member Adams and her legislative aide, Ellen Reitmeyer, both state that they did not receive this complaint, and the first time they saw a copy of it was the one attached to the appeal filed with the Attorney General's office.
With reference to Mr. Wallace's allegations concerning the intentional exclusion of members of the public, she observed:
Council Member Adams first refutes his claims of impropriety, and states that not only was Mr. Wallace present for the entire meeting, but that he was introduced as a visitor/guest at the beginning of the meeting. Nor, she states, were any members of the public turned away, although two of them came to the door and asked whether they needed to be present, because Mr. Wallace had been telling their neighborhood that they must attend this meeting. They left the meeting of their own accord. Additionally, Council Member Adams states the doors to the meeting place were not physically locked, nor did she give any direction to lock the doors, although it is possible that they may have an automatic locking function. No members of the public who attempted to enter the meeting room were ignored or turned away.
With reference to Mr. Wallace's proposed remedies, Ms. Carlton responded:
Nowhere in the Open Meetings statute does it suggest that the number of people he has listed be notified of a public agency's meetings. Currently there is no schedule of regular meetings for this committee, and no planned date for the next meeting. In accordance with KRS 61.823(4)(a), when a special meeting of the committee is to be convened, the only notice required by law is to each member of this committee, as well as to each member of the media who has filed a written request to receive notice of these meetings, to be received at least 24 hours in advance of the meeting. Mr. Wallace is correct that a notice also will need to be posted 24 hours before such a special meeting. KRS 61.823(4)(b). There is not, however, any requirement that all of the listed parties receive their own personal notice of special meetings of this committee.
Furthermore, Mr. Wallace has not suffered any injury with regard to his allegations. He was aware of the committee's meeting and was, in fact, present for this meeting. He also told many of his acquaintances about this meeting, according to a conversation that one had with Ms. Reitmeyer. The members of the committee also were aware of the meeting. According to Ms. Reitmeyer, there are no such media representatives who have signed up for notice of the meeting. Therefore, no personal notifications required under the Open Meetings laws were lacking.
In closing, Ms. Carlton reasserted that Mr. Wallace was not harmed by the alleged violations of the Open Meetings Act and that his proposed remedies are not required by the Act.
Upon receipt of a copy of the Advisory Team's response to his complaint/appeal, Mr. Wallace amplified on his position and provided additional details underlying his allegations. Mr. Wallace remarked on the absence of the posted special meeting notice in a conspicuous place in the building where the meeting took place (Hurstbourne City Hall) and speculated that the required notice was not posted in a conspicuous place in the building housing the headquarters of the agency. He noted the apparent absence of a special meeting agenda and/or the failure to adhere to any such agenda as may have existed. Finally, he recounted in greater depth his observations relative to the exclusion of other members of the public, reasserting that the doors to the Hurstbourne City Hall must have been intentionally locked since they are not equipped with an automatic locking system. We consider these statements only to the extent that they have a direct bearing on his original allegations. These allegations are otherwise not ripe for review by this office, the Advisory Team having been afforded no opportunity to respond thereto. Having reviewed Mr. Wallace's complaint and the Advisory Team's response, we find that the record on appeal supports his allegation that the Advisory Team failed to give proper notice of its special meeting. However, conflicting versions of the facts giving rise to the appeal preclude us from resolving the allegation of selective admission and failure to respond to an open meetings complaint against the Advisory Team.
To begin, there is no dispute as to the status of the Hurstbourne Area Transportation Study Advisory Team as a public agency for open meetings purposes. The Advisory Team does not contest this issue or its corollary duty to strictly adhere to the requirements of the Open Meetings Act. This being said, we find that the Advisory Team's March 14 special meeting did not conform to the requirements for such meetings set forth at KRS 61.823 resulting in the constructive, if not the actual, exclusion of the public. 1
The law imposes a duty on public agencies to provide written notice of all special meetings. Indeed, "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Failure to comply "with the strict letter of the law in conducting meetings of a public agency violates the public good." Id., citing E. W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990). Underlying these observations is the fundamental principle that "the formation of public policy is public business and shall not be conducted in secret. . . ." KRS 61.800.
In 92-OMD-1840, this office observed:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. Failure to follow all of these provisions constitutes a violation of the Open Meetings Act.
92-OMD-1840, p. 3. KRS 61.823 thus provides:
(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. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(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.
As noted, anything short of strict compliance with these requirements "violates the public good." Ratliff at 923. Inadequate notice of public meetings necessarily precludes public attendance at those meetings.
The Advisory Team acknowledges that it has not established a schedule of regular meetings as required of all public agencies, and committees and subcommittees thereof, by KRS 61.820. The March 14 meeting was therefore a special meeting for which KRS 61.823 notice was required. The record on appeal is devoid of evidence that the Advisory Team issued written notice, consisting of the date, time, and place of the meeting and the agenda for the meeting, to the members of the Team at least 24 hours before the meeting occurred, 2 or that said notice was posted in a conspicuous place in the building where the meeting was held or the building which houses its headquarters. 3 While we concur with the Advisory Team in its view that the various personal notices Mr. Wallace proposes as a means of remedying this violation find no support in the Open Meetings Act, we cannot agree that the fact that he knew of the meeting, 4 and exercised his right to attend, mitigated these violations of KRS 61.823. Notwithstanding Mr. Wallace's presence at the meeting, and the fact that he was not personally harmed by these omissions, the Advisory Team constructively excluded other members of the public from attending by failing to maximize notice of its special meeting.
Whether the Advisory Team engaged in a pattern of selective admission of members of the public, or otherwise excluded the public from the meeting, is a closer question. Clearly, such a practice is inimical to the fundamental mandate of the Open Meetings Act found at KRS 61.810(1), declaring that:
All meetings of a quorum of the members of a public agency at which any public business is discussed or at which action is taken, shall be public meetings, open to the public at all times[.]
See, e.g., OAG 92-146 (holding that "a public meeting of a public body is either open to everyone under the Open Meetings Act or closed to everyone under a statutorily recognized exception to the Open Meetings Act [, and t]here is no principle of selective admission set forth in the Open Meetings Act" ). Mr. Wallace alleges conduct of the most egregious kind, including allegations that the entrance doors were locked, members of the public were turned away at the doors, and verbal abuse was directed at those who nevertheless asserted their right to attend. The Advisory Team categorically denies these allegations. We are not empowered to engage in independent fact finding or to consider information that does not appear in the record on appeal, and the conflicting evidence in that record precludes a finding that the Advisory Team violated the Open Meetings Act in this regard. We are nevertheless hopeful that the parties will be guided by the principles set forth above in the conduct of future meetings.
Turning to the alleged procedural violation arising from the Advisory Team's failure to respond to Mr. Wallace's March 23, 2005, open meetings complaint, we again find insufficient evidence in the record on appeal to support the claimed violation. KRS 61.846(1) 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.
Mr. Wallace asserts that on March 23 he faxed his complaint to the Advisory Team's presiding officer, Council Member Julie Raque Adams, at 574-1202. 5 Council Member Adams denies that she received the complaint on March 23 and that she saw it for the first time as an attachment to this office's notification of Mr. Wallace's appeal. While it is certainly true, as noted above, that the procedural requirements of the Open Meetings Act are an essential part of the prompt and orderly processing of an open meetings complaint and appeal, 6 we are not prepared to conclude that the Advisory Team violated KRS 61.846(1) in light of the conflicting evidence in the record on appeal.
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.
Footnotes
Footnotes
1 Although it is not immediately apparent from Mr. Wallace's inartfully drafted complaint that the allegation of impropernotice was first and foremost in his mind, those allegations focusing primarily on exclusion of members of the public from the meeting, when those primary allegations are read in conjunction with his proposed remedies, it becomes apparent that his broader allegations extended to the constructive exclusion of members of the public from the meeting by virtue of the failure to give adequate notice of the meeting. As we have noted in the past with reference to open records requests, but equally applicable in this context, an open meetings complaint:
should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the [complaint] should not require . . . [such] specificity . . . as to outwit narrowing legalistic interpretations by the government."
95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigations, 460 F.Supp. 778, 792 (D.C.D. Rhode Island, 1978). Mr. Wallace's allegations relative to insufficient notice were framed with sufficient specificity to enable the Advisory Team to respond to them in its May 26, 2005, response. We therefore address the issue of constructive exclusion of members of the public by failure to give adequate notice of the special meeting as well as the issue of actual exclusion of members of the public from the meeting.
2 The Advisory Team states that the members of the Team "were aware of the meeting" but fails to produce the written notice substantiating strict compliance with KRS 61.823(4)(a).
3 The Advisory Team speaks prospectively of the duty to post written notice of its special meetings but does not state that such notice was posted for the March 14 meeting.
4 Mr. Wallace explained that he learned of the Advisory Team while attending a meeting of the Hurstbourne City Commission, and of the March 14 meeting while attending KIPDA US 60 Task Force training sessions "and [through] networking."
5 We have learned that the fax number for Council Member Adams' office is 574-4501.
6 This is particularly true in the context of the Open Meetings Act insofar as KRS 61.846(2) requires the complainant to initiate an appeal within sixty days of the agency's denial of his or her complaint or of its failure to respond to a complaint. No such time constraints exist in the Open Records Act.