Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Knox County Fiscal Court violated the Open Meetings Act in failing to respond to the written complaint of Melissa Jones; whether the agenda items contained in the notice of a special meeting were sufficiently definite to permit the public to fairly understand the purpose or purposes for which the special meeting is to be held, as required by KRS 61.823; and whether the Fiscal Court violated the requirements of KRS 61.815(1) when it went into closed session at its April 4, 2007, special meeting.
By letter dated April 16, 2007, Ms. Jones submitted a written complaint to Knox County Judge-Executive J. M. Hall, alleging violations of the Open Meetings Act had occurred at the Fiscal Court's April 4, 2007, meeting. In her letter, Ms. Jones alleged:
First, the agenda sent to area media to announce the special meeting did not inform the public of the purpose of the meeting. The public should be given enough information about the purpose of the meeting, so the public can decide whether to attend.
I am requesting that a remedy to this serious issue would be for you, as presiding officer, to give the public an adequate explanation as to the reason the meeting was called. Also, I am recommending that in the future you consult with the Knox County Attorney as to the proper procedures for calling and holding special meetings, and for advice relating to the preparation of an acceptable agenda.
Second, I am of the opinion that by entering into executive session that you and the court violated the open meetings law; the portion of the law that relates to exceptions to open meetings.
When the closed session was announced, you did not explain the matters to be discussed in the session. The specific provision of KRS 61.810(1)a. authorizing the closed session was not given. You announced those who would be attending the closed session, and that "legal Issues" would be discussed. By no stretch of the imagination could that be viewed as acceptable.
?
As for a remedy to this serious issue, I am requesting that you, as presiding officer of the court, inform the public of the topic of discussion in the closed session, and that in the future you consult with the Knox County Attorney before discussing matters in closed session. I assume that the explanation would have to be rather lengthy because the meeting lasted several hours.
In her letter of appeal, dated April 17, 2007, Ms. Jones stated that she had received no response to her complaint. Regarding the closed session, she stated:
I would like to note, that I had respectfully asked Judge Hall the purpose of the closed session before the session was held. I asked that if litigation was going to be discussed, was the litigation proposed, pending o[r] imminent. He answered that it was proposed, and then said it had not been proposed. He refused to answer what the litigation related to.
After receipt of notification of the appeal and a copy of the letter of appeal, the Knox County Judge-Executive provided this office with a response to the issues raised in the appeal. In his response, he advised:
Melissa Jones was present at the special called meeting on April 5, 2007. 1 When the motion was made to go into executive session, Melissa Jones inquired as to the reason for the executive session. I explained to her that it was proposed litigation concerning the hospital, as I had explained to her on the telephone the day prior to the meeting in a phone conversation instituted by her in compliance with KRS 61.810(c).
As to the agenda for the special called meeting, the agenda clearly states that the meeting was called for the purpose of an executive session pursuant to KRS 61.823(3). The notice consisted of the date, time, and place of the special meeting and the agenda as stated above.
For the reasons that follow, we conclude that Fiscal Court violated the Open Meetings Act by not responding to Ms. Jones' complaint, as required by KRS 61.846(1) and failed to comply with the notice requirements of KRS 61.823 by not giving fair notice to the public of the particular topics to be discussed or acted upon.
We address first the Fiscal Court's failure to respond to Ms. Jones' complaints. KRS 61.846(1) requires an agency response to an open meetings complaint in writing, and within three business days. That statute provides, in part, as follows:
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.
In construing the operation of KRS 61.846(1) , this office in 03-OMD-116, at p. 2, 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.
The facts before us in this appeal indicate that the Fiscal Court did not respond at all to Ms. Jones' written complaint. KRS 61.846(1) requires an agency response to an open meetings complaint in writing, and within three business days. A letter directed to the Attorney General following initiation of an open meetings appeal does not satisfy the statutory requirement found at KRS 61.846(1). 98-OMD-49. Accordingly, we find that the failure of the Fiscal Court to respond to Ms. Jones' complaint in writing within the three-day period constituted a violation of KRS 61.846(1) and the Open Meetings Act.
Next, we address whether the agenda items contained in the notice of the special meeting were sufficiently definite to permit the public to fairly understand the purpose or purposes for which the special meeting is to be held
The Kentucky Court of Appeals has 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. "
E. W. Scripps Company v. City of Louisville, Ky. App., 790 S.W.2d 450, 452 (1990). Echoing this view, the Kentucky Supreme Court has confirmed:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing E. W. Scripps Co., above. "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 A2d 563, 564 (N. J. Super. Ch. 1982).
To promote this goal, the Open Meetings Law establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. KRS 61.823 provides, in relevant part:
(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.
With reference to the adequacy of special meeting agendas, this office has opined:
[A]lthough "there 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 insure 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.
The five numbered items on the Fiscal Court's agenda for the April 4, 2007, special meeting provide:
1. CALL TO ORDER
2. ROLL CALL
3. MOTION TO ENTER INTO EXECUTIVE SESSION
4. MOTION TO RE-ENTER REGULAR SESSION
5. MOTION TO ADJOURN
The vague description to "enter into executive session" does not give the public fair notice of matters to be discussed at the special meeting. As noted above, fair notice to the public of the matters to be discussed cannot be imputed from vaguely worded descriptions of agenda items such as "new business, " and such descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting. In 01-OMD-175, p. 6, this office stated that "the practice of including open-ended agenda items like old and new business, or open to counsel and floor, is inconsistent with the natural and harmonious reading of KRS 61.823(3), as well as the statement of legislative policy codified at KRS 61.800, and the goal of maximizing notice to the public." The special meeting agenda was inadequate to give the public fair notice of matters to be discussed at the special meeting and thus, a violation of KRS 61.823(3).
Finally, we address the issue as to whether the Fiscal Court violated the requirements of KRS 61.815(1) when it went into closed session at its April 4, 2007, special meeting. In her complaint presented to Judge Hall, Ms. Jones alleged that he did not explain the matters to be discussed in closed session nor did he cite the specific provision under KRS 61.810(1) authorizing the closed session. In her letter of appeal, Ms. Jones advised that she had asked Judge Hall the purpose of the closed session before the session was held. She asked that if litigation was going to be discussed, was the litigation proposed, pending or imminent. He replied proposed and then said it had not been proposed. In his response provided to this office, Judge Hall advised that when the motion was made to go into executive session, Ms. Jones inquired as to the reason for the executive session. He indicated to her that it was proposed litigation concerning the hospital as he had explained to her in a phone conversation instituted by her in compliance with KRS 61.810(1)(c).
There is insufficient information presented in the record on appeal to resolve this issue because of the conflict in the facts presented to this office by the parties and because we have not been provided with a copy of the minutes, a draft of the minutes, or a recording of the meeting.
KRS 61.815(1)(a) provides:
Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.
The express purpose of this, as well as the other provisions 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. "
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 922 (1997). With specific reference to KRS 61.815, the Supreme Court declared that prior to going into closed session, "the public agency must state the specific exception contained in the statute which it relied upon," and give "specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting." Id. at 924 (emphasis added).
Consistent with the right of the people to "remain[] informed so that they retain control over the instruments they have created," (1974 HB 100 Preamble), this office has determined that notification which does not include a statement of the specific exception(s) relied upon to conduct a closed session, a description of the general nature of the business to be discussed in, and the reason(s) for, the closed session is inadequate. 00-OMD-47; 00-OMD-64; 01-OMD-181; 02-OMD-200. Although we have recognized that "given the disparate nature of the twelve exceptions, there can be no bright line test for determining if specific and complete notification has been given," KRS 61.815(1)(a) contemplates notification that "include[s] both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in sufficiently specific terms to enable the public to assess the propriety of the agency's action." 00-ORD-47, p. 6.
Clearly, "litigation" does not satisfy this standard. Nor does "litigation" accompanied by a reference to KRS 61.810(1)(c). 03-OMD-221. The requirement that the agency give notice of "the specific provision of KRS 61.810 authorizing the closed session" was added when the Open Meetings Act was amended in 1992, but does not supplant the agency's duty to give notice in the regular open meeting of the general nature of the business to be discussed in closed session, and the reason for the closed session. Together, these requirements import a legislative resolve to enhance the public's right to monitor public official conduct in a public meeting.
To comply with the requirements of KRS 61.815(1)(a), a public agency must not only identify the exception but must also describe the business to be discussed in closed session with sufficient specificity to enable the public to assess the propriety of its action. As this office has observed, "[T]he Open Meetings Act, and in particular KRS 61.815(1)(a), contemplates more than agency recitation of the language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed" so as to avoid defeating the purpose which necessitated the closed sessions. 00-OMD-47, p. 6. As noted above, insufficient information is presented in the record on appeal to resolve this issue, to the extent the Fiscal Court did not strictly comply with KRS 61.815(1)(a) as construed in Ratliff, above, its actions would constitute a violation of the Open Meetings Act.
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 Both parties make reference to the date of the special meeting as being on April 4 and April 5, 2007. It appears that the date of the meeting was April 4, 2007, as date on the notice and Agenda of the special meeting and the subject line of Ms. Jones' complaint to the county judge-executive both refer to the special meeting of April 4, 2007.