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 Superintendent Search Committee of the Todd County Board of Education violated the Kentucky Open Meetings Act by failing to provide notice of the meeting held on October 19, 2006, and subsequently failing to issue a written response within three business days upon receipt of the written complaint submitted by Melony Leazer of the Todd County Standard. Because the Committee has conceded violating KRS 61.820, the substantive issue presented by this appeal is moot in our view. Although the Committee violated KRS 61.846(1) by failing to respond in a timely manner, counsel for the Board mitigated this error by responding on behalf of the Committee four business days after he personally received a copy of the complaint.
On October 20, 2006, Ms. Leazer submitted a written complaint to Matthey Perry, Board Chairman and presiding officer at Board meetings, and Harold "Mac" Johns, counsel for the Board, who is overseeing the search process, "concerning action that took place at a superintendent search committee meeting held Oct. 19, 2006." According to Ms. Leazer, the "meeting never was announced publicly." Citing KRS 61.805(2)(g), Ms. Leazer noted the Committee is a public agency for purposes of the Open Meetings Act, but "failed to announce details of the meeting-time, day, date and place. . . . Also, all meetings of all public agencies and any committees or subcommittees thereof shall be held at specified times and places convenient to the public. The schedule of meetings shall be made available to the public. See KRS 61.820." 1 As a means of remedying the alleged violation, Ms. Leazer requested that the Committee "discuss at a future meeting, in an open and public session, those matters that were discussed at the unannounced session Oct. 19, 2006; Ms. Leazer also suggested that any "action taken as a result of the unannounced session should be declared null and void."
Having received no response to her complaint, Ms. Leazer advised Mr. Johns via electronic mail dated October 30, 2006, that she had faxed a complaint "to the central office for dissemination to" Mr. Perry as Chairman and Mr. Johns as "'consultant'" for the Committee, but had received no reply; Mr. Johns responded almost immediately that he "did not receive[,]" but "would be happy to respond." By letter dated November 6, 2006, Ms. Leazer initiated this appeal, noting that following "another three business days, [she] still [had] not received a written response. " As observed by Ms. Leazer, the Committee met on October 19, 2006, "in a session unannounced to the public, violating KRS 61.810 and 61.820. The Todd County Standard never received an announcement of said meeting." In addition, the Committee "did not comply with the strict letter of the law," codified at KRS 61.846(1), "when it failed to respond to [her] open meetings complaint."
After Ms. Leazer had submitted the requisite documentation to file this appeal, she received a response from Mr. Johns on behalf of the Committee, a copy of which she forwarded to this office. According to Mr. Johns, the "lack of notice for the first meeting of the Board of Education's Superintendent Search Committee was simply an oversight. " Acknowledging that Ms. Leazer "may very well be correct" in asserting that KRS 61.805(2)(g) 2 encompasses a superintendent selection committee, the Committee "will not have regular meetings as envisioned by KRS 61.820." Further, Todd County Board of Education Policy 02.1 "places upon the Board the responsibility for charging the selection committee 'regarding applicant confidentiality.'" Because most of the discussions concern applicants "and subjective issues regarding comparisons of respective qualifications, it would appear no course exists during those discussions, other than to conduct the meeting privately." In conclusion, Mr. Johns noted that "no action was taken by the [C]ommittee and [Ms. Leazer was] afforded notice of the next scheduled meeting, as well as the balance of the meetings which the [C]ommittee will conduct."
Upon receiving notification of Ms. Leazer's appeal from this office, Mr. Johns supplemented his response on behalf of the Committee. According to Mr. Johns:
Through oversight, notice of the initial meeting of the [Selection] Committee was not given to the local newspaper.
Although, it is not necessary for purposes of this response, since no other course exists, other than to admit notice was not given for that first meeting, it appears, that there is little guiding authority regarding the application of the Open Meetings Act to Superintendent Selection Committee [s] convening pursuant to KRS 160.352. Clearly, KRS 61.810(1)(f) excepts discussion which might lead to the appointment of an individual employee [from] the Open Meetings requirements of the KRS 61.800 et. seq.
Finally, after the oversight was brought to the attention of the Selection Committee, publication of the times and places of the meeting to the community, through Ms. Leazer's newspaper and other media outlets is occurring.
(Emphasis added). That being the case, the substantive issue presented by this appeal is moot. 3
With regard to allegations in response to which a public agency concedes error, 98-OMD-74 is controlling. At page 8 of that decision, the Attorney General observed:
If, in fact, the Board follows the course of action recommended by [the Board's attorney] at its next meeting, the issue presented in this portion of [the complainant's] appeal will be moot. 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, 401 KAR 1:030, Section 6, specifically provide[s] that "the Attorney General shall decline to issue a decision in the matter." Although the regulation does not extent 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.
See also 98-OMD-119; 02-OMD-108; compare 02-OMD-135. Because the Committee has implicitly acknowledged that Ms. Leazer's interpretation of KRS 61.820 is correct in admitting that notice was not provided for the first meeting due to "oversight, " then conceding "no other course exists, other than to admit notice was not given," and has taken the necessary steps to ensure that proper notice of meetings will be provided in the future, additional discussion of this issue is unwarranted. 4
In light of this determination, the remaining question is whether the Committee violated KRS 61.846(1), pursuant to which:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. 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. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. 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.
In construing the operation of KRS 61.846(1), this office explained:
The statute does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period.
As evidenced by the record, the Committee did not respond upon receipt of Ms. Leazer's complaint; the Committee (the presiding officer to whom a copy was also sent) has not denied receiving the complaint nor has the Committee offered any explanation for the failure to respond within three business days in accordance with KRS 61.846(1). In her letter of appeal, Ms. Leazer specifically alleges that the Committee "did not comply with the strict letter of the law, as codified under KRS 61.846(1), when it failed to respond. ..." Although Mr. Johns issued a written response on behalf of the Committee on November 3, 2006, one day past the permissible time frame (assuming that he belatedly received a copy of the complaint on October 30, 2006), thereby mitigating this error to some degree, the Committee failed to strictly abide by KRS 61.846(1). As noted by the Kentucky Court of Appeals when interpreting the procedural requirements of the Open Records Act, "[t]he language of the statute directing agency action is exact"; this holding applies with equal force to parallel requirements of the Open Meetings Act.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-OMD-029, p. 4.
Simply put, KRS 61.846(1), as interpreted by the courts and prior decisions of this office, requires a public agency to issue a written response within three business days of receiving a complaint, and failure to comply with KRS 61.846(1) constitutes a violation of the Open Meetings Act. Id. 00-OMD-142; 97-OMD-43; 96-OMD-261. However, this office reminds the parties that KRS 61.846(2) narrowly defines the role of the Attorney General in adjudicating a dispute arising under the Open Meetings Act to issuing a decision indicating whether the public agency violated provisions of the Act. 04-OMD-029, p. 4; 98-OMD-74; 97-OMD-90. In other words, this office is not statutorily authorized to declare void actions taken at a meeting that was improperly held or impose penalties for violations of the Act. 00-OMD-109; 97-OMD-90.
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 KRS 61.820 provides:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
2 In relevant part, KRS 61.805(2) defines "public agency" as follows:
(g) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection[.]
While Mr. Johns is correct in asserting that little or no authority exists regarding the interplay of KRS 160.352 and the Open Meetings Act, the Committee has not challenged Ms. Leazer's characterization of it as a public agency. See 06-OMD-068 for the analysis generally employed by this office in determining whether a committee falls within the parameters of KRS 61.805(2)(g).
3 Although Mr. Johns' argument relative to KRS 61.810(1)(f) is entirely credible, the record is devoid of evidence establishing the Committee attempted to observe the requisite formalities for going into a closed session pursuant to KRS 61.810(1)(f) or any other exception codified at KRS 61.810(1); 06-OMD-150 (a prior appeal involving these parties), a copy of which is attached hereto and incorporated by reference, is controlling on this issue.
4 With regard to application of KRS 61.820 and KRS 61.823, which govern regular and special meetings, respectively, 02-OMD-22, a copy of which is attached hereto and incorporated by reference, contains the relevant analysis.