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 Bath County Fiscal Court violated the Open Meetings Act at its June 29, 2006, meeting the subject of which was the county's fiscal crisis and the necessity of enacting an occupational license fee and budget ordinance before the expiration of 2005-06 fiscal year. For the reasons that follow, we find that the fiscal court properly characterized the meeting as an emergency meeting, albeit an emergency of its own creation, and that its actions therefore cannot be said to constitute a violation of the Act.
On July 7, 2006, C. B. Matthews submitted a written complaint to Bath County Judge/Executive Walter Shrout in which he alleged that the fiscal court's June 29 meeting was improperly characterized as an emergency meeting. Noting that the term "emergency" has been defined as a "natural catastrophic occurrence or clear and present danger to the civilian population," he challenged the fiscal court's invocation of KRS 61.823(5), and proposed that "any and all action taken at this meeting by the Judge/Executive and Commissioners . . . be null[ified] and void[ed]."
In a response dated July 12, 2006, Bath County Attorney Kim Hunt Price denied the allegations contained in Mr. Matthew's complaint. She explained:
I was scheduled to be on vacation and was not made aware of the special called meeting on June 29, 2006 until a few minutes before it was to begin. After reviewing the information and facts that the Agenda was not posted at the courthouse, I agreed with you that the special called meeting was improperly called. As a result of that determination, Judge Shrout and myself contacted Richard Ornstein at the Governor's Office for Local Development during the recess in the meeting. He agreed with me that the special meeting was improperly called and it was his recommendation that Judge Shrout call an emergency meeting.
Pursuant to KRS 61.823(5) it is my opinion that the emergency meeting of the Bath County Fiscal Court was properly called. Judge Shrout had also sent your letter to Richard Ornstein and he also agrees that the meeting was properly called.
KRS 61.823 (5) allows emergency meetings to be called. The statute is designed so that if there is an emergency every effort must be made under the circumstances to notify members of the agency, (in this case the fiscal court) and any media who has made a written request for such notification and the public of the emergency meeting. This is to ensure that all individuals concerned are aware of the meeting. In this case, all members of the fiscal court were already at the special called meeting as well as members from both local newspapers, radio station and numerous people from the community concerned with this issue.
Further, as you correctly stated in your letter, at the beginning of an emergency meeting the individual chairing the meeting, in this case the Judge Executive, should briefly describe the emergency for the record. Judge Shrout described the emergency as being the fact Kentucky law requires a budget and the Kentucky Constitution requires a balanced budget. He stated that there was a fiscal crisis in the county and that revenues did not meet expenditures. He also stated that the court had reviewed the budget for several months and had made all possible cuts. He stated that without a balanced budget being approved beginning Saturday, July 1, 2006, that the county would not be able to expend any funds and that those funds were necessary to provide essential services to the citizens. It was necessary for the emergency meeting to include a second reading of the Ordinance for the Occupational License Fee to create a balanced budget as revenues do not meet expenditures otherwise. It was also necessary to have the second reading of the budget in order to have a budget passed before the end of the fiscal year, June 30, 2006.
Acknowledging that she was unable to locate any open meetings decision of this office addressing "this type of emergency, " Ms. Hunt-Price nevertheless concluded that "if the county could not expend money as of Saturday, July 1, 2006, for essential services such as ambulance, law enforcement, dispatchers, or others, there would have been a crisis directly effecting the safety of the entire community."
On appeal, Mr. Matthews notes that with thirty-six hours remaining before the 2005-06 fiscal year expired, the fiscal court "could have closed the Special Meeting and the Emergency Meeting, set a new special meeting to take place twenty-four hours hence, advertised the agenda on the local radio, and posted it in an approved location," thereby complying with the notice requirements of the Open Meetings Act. It was his belief that the fiscal court did not do so because it wished to avoid "a public outcry" arising from its "inept handling of county funds."
In supplemental correspondence directed to this office following commencement of this appeal, Ms. Hunt-Price amplified on the Bath County Fiscal Court's position, explaining:
Mr. Matthews' appeal questions the legality of the Fiscal Court's emergency meeting held June 29, 2006 due to an alleged statutory violation, namely the posting of the notice pursuant to KRS 61.823(4)(b). KRS 61.823(4)(b) provides as follows:
On June 29, 2006, the Fiscal Court held a Special Meeting to discuss budgetary concerns. The Fiscal Court had yet to balance its budget for fiscal year 2007. After much deliberation and budget cuts wherever possible, it was evident that the only way to balance the budget was to increase revenues. Hence, the first reading of the Occupational License fee ordinance had already taken place at the Fiscal Court's regular June 2006 meeting. A notice of the Special Meeting had been published in the local newspaper for two consecutive weeks prior to the meeting. See enclosed copy of the notice printed in the June 22, 2006 edition of The Bath County News-Outlook.
A large crowd of the public, as well as the media agents of the local newspaper (The Bath County News-Outlook) and local radio station (WKCA), attended the Special Meeting. When Mr. C. B. Matthews questioned the meeting's legality on the issue of proper notice, the Fiscal Court adjourned the meeting.
Immediately following adjournment of the Special Meeting, Judge Shrout stated to those present that he was calling an Emergency Meeting pursuant to KRS 61.823 (5). When Judge Shrout called the Emergency Meeting to order, he provided the reason as being the county's fiscal crisis - expenditures exceeded revenues. With the new fiscal year to begin July 1, 2006, Judge Shrout explained that the county could not expend funds without an approved balanced budget. All cuts possible had been made to the budget and increased revenues were required to get a balanced budget as required by statute and the Kentucky Constitution. First Reading of the Occupational License Fee Ordinance had already taken place and no other remedies to increase revenues sufficient to balance the budget were available. Judge Shrout stated that the Emergency Meeting was necessary to have the Second Reading of the Occupational License Fee Ordinance and, if passed, to have the Second Reading of the budget ordinance.
When the emergency meeting took place, the Fiscal Court faced a budget crisis with only thirty-six (36) hours remaining in the 2006 fiscal year. In the time leading up to the emergency meeting, Judge-Executive Walter Shrout had made numerous calls to the Governor's Office for Local Development ("GOLD") about the budget dilemma. In March 2006, he traveled to Frankfort to meet with GOLD representatives regarding budget issues. In late May 2006, a GOLD representative came to Judge Shrout's office to further discuss budget concerns and options in an attempt to achieve a balanced budget. Nevertheless, on June 29, 2006, the Fiscal Court still had not presented a balanced budget.
On behalf of the fiscal court, Ms. Hunt-Price asserted that "[w]ithout the emergency meeting, the county faced an imminent possibility of a shutdown of vital services . . . [and] risked placing its citizens' welfare in a dangerous state, . . . caus[ing] the county to operate without ambulatory services, law enforcement, or police dispatchers." We agree.
In 00-OMD-80, this office first analyzed the propriety of an agency's invocation of KRS 61.823(5), observing:
Our research of existing case law and Attorney General's open meetings decisions discloses no instances where the courts or this office have determined that circumstances were sufficiently grave to warrant a decision to call an emergency meeting. Commenting on the paucity of authority construing KRS 61.823(5), retired Assistant Attorney General Thomas R. Emerson observed in Kentucky Administrative Law Section 4.7 (UK/CLE 1999) that "no situation is known where a local public agency could legitimately invoke the emergency exception to the delivery and posting requirements." Given the strong admonition issued by the Kentucky Supreme Court in Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997) that "[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions [, and] the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," it is apparent that KRS 61.823(5) may be invoked by public agencies on only the rarest of occasions, and then only when emergency conditions prevail.
An emergency is defined as "a serious, unexpected situation or occurrence that demands immediate action. " The American Heritage Dictionary (Houghton Mifflin Company, 3d ed. 1994). Examples of an emergency under this definition would include, but not be limited to, occurrences such as a natural catastrophe or civil unrest. However, a determination of what constitutes an emergency is intrinsically situational, requiring a case-specific analysis directed at ascertaining whether circumstances are sufficiently serious, unexpected, and in need of immediate action to justify a suspension of the normal rules of proceeding. As noted above, in making this determination, we are guided by the principles set forth in Floyd County.
Based on these principles, in 00-OMD-80 we concluded that a community college board of directors improperly relied on KRS 61.823(5) to justify an "emergency" meeting to discuss a request that a bill be drafted, before the last date for filing new legislation in the General Assembly, to change the college's name, reasoning that such was not, in our view, "a sufficient basis for declaring that an emergency exists." 00-OMD-08, p. 4; accord, 00-OMD-227 (holding that Department of Insurance's Health Insurance Advisory Committee improperly characterized meeting to discuss implementation of legislation requiring issuance of health benefit plans as an "emergency" meeting inasmuch as no emergency existed on the meeting date "of the magnitude contemplated by the statute [that would otherwise] justify a suspension of the normal rules of proceeding"); 02-OMD-91 (disapproving Pewee Valley City Council's characterization of a meeting to discuss enactment of a tall structures ordinance, before Governor signed bill threatening ordinance's enactment, as an "emergency" meeting, notwithstanding council's claim of "civil unrest in Pewee Valley resulting from opposition to the cell tower" ).
At page 5 of 02-OMD-91, this office reasoned:
We do not agree that the perceived necessity of enacting an ordinance . . ., under these circumstances, can be equated to "a serious, unexpected situation or occurrence that demands immediate action, " especially in view of the fact that the proposed ordinance had apparently been under consideration for several months. Moreover, organized opposition cannot generally be equated to "civil unrest" unless it is accompanied by acts of lawlessness that necessitate an immediate official response.
The record in the appeal now before us suggests that the Bath County Fiscal Court, like the Pewee Valley City Council in enacting its cell tower ordinance, had ample opportunity to resolve its fiscal crisis and enact a budget ordinance, as well as its occupational license fee ordinance if needed, well in advance of the thirty-six hours that preceded expiration of the 2005-06 fiscal year. The circumstances that prevented it from doing so are not an appropriate subject for the Attorney General's review under the Open Meetings Act. The fact that it had not done so is only appropriate for review by this office because this fact has a direct bearing on the fiscal court's argument that an emergency existed on June 29, 2006, that justified a suspension of the normal rules of proceeding. While the need to rename a college or to erect a cell tower cannot reasonably be equated with an emergency of the magnitude of a natural disaster or civil unrest, we find that the threatened cessation of vital services, owing to the failure to enact a budget ordinance, can be roughly equated to an emergency of this magnitude. Although this emergency could have been, and clearly was, foreseen, and therefore should not have demanded eleventh-hour action, we are not prepared to say that an emergency did not exist on June 29, 2006, or that the Bath County Fiscal Court improperly characterized the meeting it conducted on that day as an emergency meeting.
In so holding, we remind the parties that our decision should not be construed as an invitation to public agencies to liberally invoke KRS 61.823(5) when the agencies have been dilatory in discharging their official duties, or to otherwise ignore their statutory obligation to "make a reasonable effort, under emergency circumstances," to comply with the special meeting notice requirements. Because the only known deficiency in the special meeting notice consisted of the fiscal court's failure to post said notice in the statutorily required location(s), and because it is highly likely that fewer people could have, or would have, attended the proposed special meeting twenty-four hours later, we believe that any holding other than the holding we reach today would elevate form over substance. Virtually all, if not all, interested parties were present on June 29 for both the special and the emergency meetings. Given these facts, we are unwilling to assign error to the Bath County Fiscal Court for its decision to convene an emergency meeting to insure passage of a budget ordinance and avoid cessation of vital services.
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.