Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Hazel City Council violated the Kentucky Open Meetings Act by failing to strictly comply with the notice requirements codified at KRS 61.823(3), prior to the special meetings held on April 12, 2005, and April 13, 2005, and by failing to limit the discussions at those special meetings to the item listed on the agenda in the notice as mandated by KRS 61.823(3). Guided by the judicial pronouncement that "statutes enacted for the public benefit should be interpreted most favorably to the public,"
The Courier-Journal and Louisville Times Co. v. University of Louisville Board of Trustees, Ky. App., 596 S.W.2d 374, 378 (1979), as well as the rule of strict construction codified at KRS 61.800, this office concludes that the Council violated the Open Meetings Act in failing to include the date with the time, place, and agenda in the notice of the special meetings posted on the front door of City Hall, and discussing matters outside the scope of the item listed on the agenda in the posted notice as evidenced by the record.
By letter dated June 9, 2005, Ray Gough, Jill Niesen, and Pat Armstrong, collectively referred to as the "Hazel Merchants," submitted a written complaint to Harold Pittman, Mayor and "presiding officer at city council meetings," alleging that the City Council did not substantially comply with the "notice posting requirements for holding a special meeting" prior to the special meetings held on April 12, 2005, and April 13, 2005. In the Merchants' view, "neither notice met the minimum requirements for 'notice of holding a special meeting. '" More specifically, the notice posting in the Murray Ledger & Times newspaper listed the date, time, and place, but failed to list the agenda; the notice posting on the front door of City Hall listed the time, place and agenda, but failed to list the date. In addition, the videotape of the special meetings at issue and the article in the Ledger & Times indicate that the discussions and actions at the meetings were not restricted to the agenda listed on the notice posted on the front door of City Hall. As a means of remedying the alleged violations, the Merchants request that "all actions taken at these two special meetings be null and void."
In a timely written response, Trevor H. Coleman, City Attorney, acknowledged that Mr. Pittman had received the Merchants' complaint on June 13, 2005, "by restricted delivery." Initially, Mr. Coleman requested that the Merchants forward all future correspondence regarding this matter to the City of Hazel at the address provided rather than corresponding directly with the Mayor or the City Council members. It is the City's position that the City Council fully complied with KRS 61.823. According to Mr. Coleman, written notice of the special meeting was given, "which consisted of the date, time, place and agenda for the meeting. It was also published in the Murray Ledger & Times. " In fact, the Merchants' complaint "verifies [this] position in that the elements required were fulfilled in order to complete and hold a special called meeting." Because the Merchants attended the meetings, Mr. Coleman asserts that the notice must have been sufficient as further evidenced by the videotape of the meetings. Accordingly, Mr. Coleman denied the Merchants' request to nullify any action taken at the meetings on behalf of the City. As the action was "properly undertaken," it will be enforced "and followed as voted upon at the meetings."
Attached to the Merchants' letter of appeal are copies of both notices. 1 Upon receiving notification of the Merchants' appeal from this office, Mr. Coleman elaborated upon the City's position. As observed by Mr. Coleman:
2. . . . the alleged complaint fails on its face and must be denied under the existing statutes. As supplied by the appellants in their complaint, notice of the meetings, held on April 12 and April 13, 2005, was properly given in all respects as required by KRS 61.823 in that the date, time, place and agenda were noted on the written notice. Furthermore, the notice was placed in the Murray Ledger & Times in accord with KRS 61.823(4)(a);
3. The notice as published is virtually the same as the type of notice always used in the past, and no objection has been filed prior to the one filed by the Appellants;
4. The complaint itself is self-defeating also in that apparently the notice was sufficient in that the appellants were present for the meeting and have been, obviously, following every move that the agency makes with respect to procedure. The Legislative Statement of Policy, as defined in KRS 61.880 is quite clear, and is as follows: "The General Assembly finds and declares that the basic policy of KRS 61.805-61.850 is that the formation of public policy is public business and shall not be conducted in secret. . . ." Obviously, in this matter the policy of KRS 61.823 has been complied with and upheld in that any person having the right to attend the meetings in question, being the public as a whole, had the requisite notice to provide for their attendance. The fact that the appellants were present simply proves the agency's point; and,
5. The City of Hazel would also note that it appears the appellants have filed this appeal in an attempt to inhibit the City from requiring business licenses to be obtained by various operators of businesses within the city limits. The appellants are in no way concerned about their procedural rights under the Kentucky Open Meetings Act or [the Open Records Act]. They are concerned with their money. Although one's funds are quite important, there is also a duty to comply with the local authority as to proper licensing requirements. Continued appeals having no merit are unsatisfactory to block the ability of an agency to regulate business via proper licenses. The appellants derive substantial benefits from operating various businesses within the City limits. As such, they will, through proper ordinances, be required to pay their fair share in licensing fees.
Based upon the objective evidence of record, this office concludes that the City Council omitted the date from the otherwise sufficient notice posted on the front door of City Hall thereby failing to fully comply with the notice requirements codified at KRS 61.823(3). 2 Because the videotape of the meetings at issue validates the position of the Merchants as to the City Council not limiting the discussions during those meetings to the item listed on the agenda in that notice, "New Time Period for Business Licenses, " this office further concludes that the City Council acted in violation of KRS 61.823(3) in this respect as well.
Fundamental to our analysis in this context is the legislative statement of policy codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
As a threshold matter, our analysis proceeds on the assumption that two special meetings of the City Council are being challenged since the notice requirements of KRS 61.823 are not triggered when the meeting is properly characterized as regular.
In applying this provision, the Kentucky Supreme Court has recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good, " and 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), citing
E.W. Scripps Co. v. City of Maysville, Ky. App., 750 S.W.2d 450 (1990). In Scripps, the Kentucky Court of Appeals likewise 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. " Id. at 452. As evidenced by the foregoing: "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 A.2d 563, 564 (N.J. Super. Ch. 1982).
To promote this goal, the Open Meetings Act establishes specific requirements which a public agency must fulfill prior to conducting a special meeting. In relevant part, KRS 61.823 provides:
(4) 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 taken at the meeting shall be limited to items listed on the agenda in the notice. (Emphasis added).
(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.
As with the Open Records Act, the "language of the statute directing agency action is exact."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). KRS 61.823 requires the public agency to provide written notice of the special meeting consisting of the date, time, and place of the meeting, and the agenda, and to deliver written notice by one of the specified means to every member of the public agency, and media organizations that requested notification, at least 24 hours before the meeting is scheduled to occur. In addition, the Act requires the public agency to post the written notice in a conspicuous place in the building where the meeting will take place, as well as the building which houses the agency headquarters, at least 24 hours before the meeting. Because the Merchants do not allege, nor is there any evidence of record to support an allegation that the City Council failed to comply with KRS 61.823(4), our analysis focuses exclusively on whether the City Council fully complied with the mandatory and inclusive terms of KRS 61.823(3).
When called upon to render a decision involving statutory interpretation, the Attorney General, like the judiciary, is required "to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). Our office is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. To determine legislative intent, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, this office "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). To summarize, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra. Guided by these principles, this office must conclude that the City Council did not provide adequate notice of the special meetings which prompted this appeal.
Failure to include the date of the special meeting on the written notice posted on the front door of City Hall (where the meeting took place, and presumably the headquarters for the City Council), as the City Council clearly did here, is inconsistent with the fundamental principle of "maximiz[ing] notice of public meetings and actions," and represents less than strict compliance with the letter of the law. Ratliff at 923; See also 96-OMD-216. Although the notice does contain the remainder of the requisite items, namely, time, place, and agenda, 3 any action not in strict compliance with the Act is in derogation of "the public good. " Ratliff, supra, at 923. 4 To the extent of this omission, the City Council therefore violated the express terms of KRS 61.823(3). See 01-OMD-135. Any other interpretation of KRS 61.823 is "clearly inconsistent with the natural and harmonious reading . . ." of the Open Meetings Act given the legislative declaration that the "formation of public policy is public business. . . ."
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992).
In light of this determination, the question becomes whether the City Council limited the discussions at the special meetings held on April 12, 2005, and April 13, 2005, to the item listed on the agenda in the notice. As observed by the Attorney General:
[T]he public has a right to expect strict compliance with the requirement that discussions and actions taken at the meeting be limited to items listed on the agenda contained in the notice. Because no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings. Public agencies do not enjoy the same freedom to discuss, or act upon, matters entrusted to them in a special meeting, but are, as noted, restricted to discussion, or action on, agenda items.
01-OMD-175, p. 6.
Here, the sole topic of discussion was supposed to be a "new time period for business licenses. " More specifically, the City Council convened to change the date in the occupational license fee structure from July 1st to June 30th to coincide with the fiscal year, and voted to accept this change as evidenced by the videotape of record. However, an unidentified council member made a motion "in conjunction with that" to make any change in the current business license fee structure which becomes effective prior to July 1, 2005, retroactive insofar as any business to which the fee applies that has already paid the current fee may be required to account for any discrepancy in the event of an increase and will receive a "rebate" if the fee is reduced. Although this motion arguably relates directly to the item listed on the agenda or is sufficiently connected to be permissible, 5 the City Council also discussed the separate but related recommendation by another council member to form an " ad hoc committee" consisting of two local business owners, two residents, and two City Council members for the purpose of addressing this issue. A third council member then recommended that the City Council consider developing a mailing for distribution to all residents outlining the duties performed by city officials such as City Council members. In our view, both of the latter topics fall outside the limited scope of the sole agenda item. Likewise, the subsequent meeting consisted of a "second reading" of the motion to change the date in the ordinance, followed by a discussion of the other issues improperly raised at the first special meeting. To the extent the City Council discussed issues aside from the item listed on the agenda, albeit briefly, those discussions also constitute a violation of the Open Meetings Act.
In closing, this office notes that the Attorney General is not empowered to compel the City Council to implement the remedial measures proposed by the Merchants in their complaint and letter of appeal. To the contrary, the role of the Attorney General in resolving these matters is narrowly defined by KRS 61.846(2) to issuing a written decision "which states whether the agency violated the provisions of KRS 61.805 to 61.850." Having determined that the City Council violated the Open Meetings Act by failing to provide adequate notice of the special meetings held on April 12, 2005, and April 13, 2005, and discussing matters outside the scope of the sole item listed on the agenda in the notice, this office has fully discharged its duty.
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 proceeding.
Ray GoughJill NiesenPat ArmstrongHazel MerchantsP.O. Box 196Hazel, KY 42049
Harold Pittman, MayorCity of HazelP.O. Box 156Hazel, KY 42049
Trevor H. ColemanCity Attorney408 Main StreetMurray, KY 42071
Footnotes
Footnotes
1 In its entirety, the notice posted on the door of City Hall provides:
Notice
Special Meeting
Tuesday and Wednesday
6:00 P.M. Each Night
at
City Hall
Subject:
New Time Period for Business Licen[ses]
As published in the local newspaper, the notice provides:
PUBLIC NOTICE Two special called meetings for the Hazel City Commissioner[s] are Tuesday April 12th at 6:00 p.m. and April 13th at 6:00 p.m. at the Hazel City Hall.
2 None of the arguments raised by the Merchants on appeal are relevant to the analysis employed by this office in resolving the issues presented with the exception of the argument that notice "was properly given in all respects" as required by KRS 61.823; this argument is not substantiated by the record.
3 In construing KRS 61.823(3), this Attorney General has recognized:
. . . that although "[t]here is no definition of the term 'agenda' and no explanation as to what constitutes a satisfactory agenda" in the Act, "'agenda' is defined in part in Webster's Third New International Dictionary (1966) as 'a list or outline of things to be done, subjects to be discussed, or business to be transacted.'" 97-OMD-43, p. 3. This definition, in our view, contemplates sufficient specificity in the description of the items to be discussed to ensure fair notice to the public. 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." Further, such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
01-OMD-175, p. 5. In our view, the agenda on the notice at issue is specific enough that fair notice can be imputed to the public. Because this issue is not among those presented by this appeal, further analysis is unwarranted.
4 Conversely, a review of the notice which appeared in the local newspaper contains the dates of the special meetings, and is otherwise consistent with KRS 61.823(3), but lacks an agenda as evidenced by the record. "Notice to the news media," as long recognized by the Attorney General, "is notice to the public." OAG 79-121, p. 2. Although the record is unclear as to whether the notice which the City Council apparently provided to the newspaper (as statutorily required) contained an agenda, the Open Meetings Act governs only the actions of a public agency; the actions of the newspaper are outside the scope of our review. Assuming that the City Council provided the newspaper with a complete copy of the notice, the City Council discharged its statutory duty in this regard. See 03-OMD-197.
5 See 04-OMD-199, in which the Attorney General also reiterated his disapproval of revising the agenda of a special meeting during the course of the meeting by adding items to the agenda.