Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
Having been presented with this matter in the context of an Open Meetings appeal filed by Harold R. Kearney, alleging sixty-four violations of the Open Meetings Act by the Simpsonville City Commission occurred between January 2003 and May 2005, and being sufficiently advised, the Attorney General finds as follows:
Moot issues
With respect to allegation nos. 1, 1 2, 4, 5, 7, 9, 10, 11, 13, 14, 16, 17, 18, 20, 22, 23, 27, 28, 29, 30, 33, 34, 35, 37, 39, 44, 46, 47, 48, 51, 54, 57, 59, and 64, Mayor Steve Eden, responding on behalf of the City Commission, acknowledges the errors committed by the City Commission, 2 and indicates that the City Commission has now adopted practices in compliance with the requirements of the Open Meetings Act, KRS 61.823 and KRS 61.835 in particular. 3 As recognized by the Attorney General:
This scenario can be analogized to an open records appeal in which a public agency initially denies a request for records and an appeal is filed, but the agency releases the records before the Attorney General issues his decision. In such instances, 40 KAR 1:030, Section 6, specifically provides that "the Attorney General shall decline to issue a decision in the matter." Although the regulation does not extend by its express terms to open meetings appeals, we believe that its underlying logic applies with equal force in these appeals. Where the agency concedes error, the issue upon which that portion of the appeal is based becomes academic or moot.
98-OMD-119, p. 8. See 04-OMD-072; 98-OMD-119. In our view, this reasoning is equally applicable as to those issues raised by the enumerated allegations.
Because any issues relative to the admitted violations are now moot, this office must decline to render a decision on the merits with respect to those issues. As with appeals filed pursuant to the Open Records Act, this office assumes a modicum of good faith from both parties involved in an Open Meetings appeal-from the complainant in identifying violations of the Act and proposing remedial measures, and from the public agency in acknowledging violations committed, implementing the proposed remedial measures to the extent warranted, and honoring its commitment to either begin or continue complying with the Act. A review of the record in its entirety reveals that the remaining allegations, many of which involve disputes of a factual nature incapable of resolution, 4 revolve around the requirements for special meetings codified at KRS 61.823, the requirements for minutes of meetings codified at KRS 61.835, or both. In the interest of brevity, the allegations will therefore be addressed generally, by category, beginning with those relating to KRS 61.835.
Alleged violations of KRS 61.835
Of those allegations still at issue, 3, 8, 19, and 58 are based upon KRS 61.835, which provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
Appeals arising exclusively under KRS 61.835 "are rare," presumably because the provision is "clear on its face." 04-OMD-182, p. 6. Addressing the requirements of KRS 61.835 as applied to ad-hoc committees serving a strictly advisory function, the Attorney General determined that minutes must be maintained, even if those minutes reflect only that the public agency convened, approved the minutes of the last meeting, and adjourned. See 00-OMD-96; 95-OMD-64. In other words:
KRS 61.835 sets forth the minimal requirements pertaining to the keeping of the minutes of a public agency. . . . If at the meeting in question nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to public inspection. While some agencies may by their own regulations require more thorough minutes, the Open Meetings Act requires only what is set forth in KRS 61.835 relative to the minutes.
95-OMD-64, p. 4.
Early on, the Attorney General construed this provision, which has remained intact since being enacted in 1974, as requiring the minutes of a meeting held by a public agency to reflect only "the formal actions taken and the votes cast by the members," and not requiring the minutes of the meeting "to summarize the discussion or record what any of the members said." OAG 81-387, p. 2. In so holding, this office relied upon the express language of the statute as well as "the foremost authority on parliamentary procedure, Roberts' Rules of Order, Newly Revised, Scott Foresman and Company, § 47, pp. 389-391. [(1970) indicating] that minutes should contain mainly a record of what was done at the meeting, not what was said by the members." Id., p. 1. On this basis, the Attorney General concluded that "anything more than [a record of votes and actions] is a matter of parliamentary procedure and [falls within] the discretion of the public body." Id.
Shortly thereafter, the Attorney General clarified this position as to the necessity of recording the name of the person who makes or seconds a motion:
The customary practice in parliamentary bodies is to record in the minutes the name of the person who makes or seconds a motion, but such is not required by the statute. It is required, however, that the minutes show how each member voted or if he abstained. If the vote was unanimous it is sufficient to so state in the minutes.
OAG 82-412, p. 2. In OAG 91-196, the Attorney General reaffirmed this principle, holding that KRS 61.835 requires "that the minutes of the meeting show how each member voted or if he abstained except, if the vote was unanimous, it is sufficient to so state in the minutes. " Id., p. 2.
Given the limited and conflicting evidence of record, this office must assume that the City Commission has adopted practices in compliance with KRS 61.835, as construed in prior decisions by the Attorney General, except in those instances with respect to which the City Commission concedes having erred in previously not approving the minutes in a timely manner. To the extent the City Commission otherwise failed to take and promptly approve accurate minutes as alleged by Mr. Kearney, if at all, the City Commission violated KRS 61.835. Although the minutes of the meetings "may contain more than the minimum statutory requirement, they may not contain less." 98-OMD-119, p. 5.
In revising the minutes of prior meetings, the City Commission may not alter the minutes "to show something other than what actually occurred at the previous meeting." OAG 77-494, p. 2. When asked to determine whether a board member could change his or her vote on a motion raised at the previous meeting prior to approval of the minutes being sought, this office observed:
[W]e believe that the minutes may be amended at a subsequent meeting to conform them to the facts, but not to reflect a change in position on the matter involved in the question voted on. If through inadvertence the minutes have been inaccurately made, for example where the minutes failed to show the yeas and nays as actually voted, it is legal to correct the minutes according to the truth. It would be improper, however, to change the minutes to show something other than what had actually occurred at the previous meeting. To do this would be tantamount to falsification of records.
04-OMD-179, p. 9, citing OAG 77-494. Accord OAG 79-96; OAG 78-796; OAG 78-346. These decisions are premised upon the following notion:
While minutes may be amended to complete it so as to reflect the truth of what occurred (such as to include an actual vote count), deficiencies in the minutes cannot be corrected by an amendment which is based upon oral testimony or affidavit of an action by the board not even reflected in the minutes.
OAG 79-96, p. 3. To hold otherwise "would lessen, if not destroy, the faith of the public in the verity and permanence of public records."
Janutola & Comadori Construction Co. v. Taulbee, 229 Ky. 213, 16 S.W.2d, 1026, 1052 (1929); OAG 78-346. However, typographical/ spelling errors and the like can be corrected prior to approving draft minutes, and modifications can be made to ensure that the minutes accurately reflect the events of the meeting. 04-OMD-179, p. 10.
Absent objective evidence to the contrary, this office has no reason to question Mayor Eden's characterization of the errors found in the numerous minutes being challenged, namely, "typographical" and "clerical error[s]," the correction of which does not fall within the zone of prohibited conduct relative to modification of minutes. Assuming that any corrections that have been made, either before or after the minutes were approved, do not deviate from the facts, the City Commission did not violate the Act in this regard.
Alleged violations of KRS 61.823
In sum, the remaining allegations, 6, 12, 15, 21, 24, 25, 26, 31, 32, 36, 38, 40, 41, 42, 43, 45, 49, 50, 52, 53, 55, 56, and 60-63, challenge the actions of the City Commission relative to the special meetings held during the specified time period; more specifically, Mr. Kearney contends that the City Commission consistently failed to strictly comply with the requirements of KRS 61.823(3) and (4).
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 special meetings of the City Commission are being challenged since the notice requirements of KRS 61.823 are not triggered when the meeting is properly characterized as regular. 5
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:
(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 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 methods to every member of the public agency, and media organizations that requested notification, at least 24 hours before the meeting is scheduled to occur. 05-OMD-138, p. 6. 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. Id.
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.
Failure to include any of the requisite items in the written notice (s) provided constitutes a violation of the Open Meetings Act. With the exception of those errors conceded by the City Commission, this office is unable to conclusively determine whether the City Commission complied with the mandatory terms of KRS 61.823 in its entirety given the factual discrepancies and lack of objective evidence presented. 6 To the extent the City Commission ever failed to include the date, time, place, or agenda 7 in the notice (s) provided, and notify the members of the City Commission at least twenty-four hours in advance of the meeting(s), and post a written notice (s) in both the building where the meeting(s) took place and the building which houses the headquarters of the City Commission, as mandated by KRS 61.823, the City Commission acted in contravention of the Act. 8 Any other interpretation of KRS 61.823 is "clearly inconsistent with the natural and harmonious reading . . ." of the Open Meetings Act in light of 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); 05-OMD-138. To clarify, the "fact that some of the special meetings [Mr. Kearney] challenged were primarily informational," does not excuse any violations, as the City Commission seems to believe, nor does the fact that no action was taken. As the Attorney General observed in 98-OMD-74, this office attaches significance to the use by the General Assembly of the "disjunctive particle "or" rather than the conjunction "and."
Proposed Remedies
In closing, this office notes that the Attorney General is not empowered to compel the City Commission to implement the exact remedial measures proposed by Mr. Kearney in his complaint, such as rendering any action taken at the meetings moot. To reiterate, 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 whether the City Commission acted in violation of the Open Meetings Act, to the extent possible, this office has discharged its statutory duty.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit 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.
Distributed to:
Harold R. Kearney508 Garden CourtSimpsonville, KY 40067
Stephen Eden, MayorCity of SimpsonvilleP. O. Box 378Simpsonville, KY 40067
James Hite HaysCity AttorneyCity of Simpsonville521 Main StreetShelbyville, KY 40065
Footnotes
Footnotes
1 Contrary to the Mayor's characterization of the City Commission's first admitted violation, none of the violations can properly be characterized as "technical." To the contrary, the Open Meetings Act "does not recognize a class of violations of lesser gravity than the remaining class of violations, and therefore capable of being dismissed as merely 'technical.'" 00-OMD-114, p. 3; 01-OMD-141.
2 More specifically, the City Commission addresses Mr. Kearney's seventh allegation, questioning the procedure for approving minutes, as follows:
Response: Although the multiple dates being referred to in paragraph 7 of the complaint letter create some confusion, it is acknowledged that in the past the City has not approved all minutes at the next regular meeting. It was a prior practice of the Simpsonville City Commission to approve minutes once per month. However, on advi[c]e from counsel of the requirements of the statute, the Simpsonville City Commission is now approving the minutes of the prior meeting at the next meeting as is required by statute. Because this policy has now been implemented, no further action is required. Additionally, the minutes of the Simpsonville City Commission accurately reflect the dates of their approval and therefore no further amendment to the minutes is required or warranted. For meeting[s] held on April 5, 2005, and thereafter, minutes have been approved at the meeting immediately subsequent thereto.
In responding to allegations 13, 14, 18, 23, 30, 33, 37, 39, 47, and 51, the City Commission expressly adopts this explanation thereby rendering any related issues moot.
3 Due to the voluminous, convoluted, and somewhat repetitious nature of the record on appeal, this office makes no attempt to summarize the events which precipitated this appeal; nor is this office able to engage in a through analysis of each allegation separately, as is normally our practice, in light of the time constraints imposed (10 business days) upon the Attorney General per KRS 61.846(2), though all of the allegations are addressed, either directly or indirectly, by the authorities cited.
On a separate but related note, Mayor Eden adopts his previous response on behalf of the City Commission on appeal. To the extent that Mr. Kearney "raises issues that were not addressed in that letter," Mayor Eden correctly argues that "he has not complied with the statute" so those assertions should not be considered (any issues concerning the agenda for the meeting of July 5, 2005, a copy of which is attached to Mr. Kearney's letter of appeal, for example). Because Mr. Kearney did not raise any such issue(s) in his original complaint, the issue(s) are not ripe for review at this time. To the extent that Mr. Kearney's letter of appeal mirrors his original complaint, the City "stands on the responses previously provided," copies of which are attached to Mayor Eden's letter.
4 As consistently recognized by this office, the role of the Attorney General in adjudicating a dispute arising under the Open Meetings Act is narrowly defined by KRS 61.846(2), pursuant to which the Attorney General "shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850," nothing more, nothing less. Such decisions involve application and interpretation of those provisions, or questions of law. As with appeals arising under the Open Records Act, this office is not empowered to resolve disputes of a factual nature in the context of an Open Meetings appeal; our review is confined to the written record. See 00-OMD-142; 00-OMD-96. To the extent that Mr. Kearney disputes the position of the City Commission as to various issues rather than alleging violations of the Act, the issues raised are not cognizable under the Open Meetings Act. See 99-OMD-183.
5 In 92-OMD-1840, the Attorney General clarified:
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 scheduled 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, 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.
Id., p. 3.
6 In denying the allegations relative to this provision, the City Commission repeatedly asserts that "notice of said meeting was provided to the Shelby Sentinel newspaper and Commission members," and/or "announced" at the prior meeting, or contends that "Said meeting was noticed as required by statute" without further elaboration, depending on the nature of the specific allegation. However, the City Commission evidences an understanding of the requirements in responding to other allegations with more detail. Neither party provides this office with supporting documentation, nor could this office evaluate the authenticity of any such documents as would be required to resolve certain questions posed by Mr. Kearney.
7 See 04-OMD-199, pp. 7-8, for the standard applied by this office relative to the degree of specificity required for an agenda. With respect to the moot issue of discussing matters outside the scope of the items listed on the agenda, see 05-OMD-138, pp. 8-9.
8 In several instances, the City Commission explains that because the retention schedules provided by the State Archives and Records Commission "do not require retention of notice [s] posted beyond one year, there is no written verification as to whether there was a posting." Having verified this retention period by accessing the Local Government General Records Retention Schedule on the Department for Libraries and Archives website, this office finds no error by the City Commission in this respect. Pursuant to Series No. L4953, Meeting Notices/ Agendas, public agencies must retain such records for one year, and the "Disposition Instructions" are to "Destroy."