Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Oak Grove violated the Open Meetings Act by failing to respond to the open meetings complaint, as required by KRS 61.846(1), and by failing to comply with the notice requirements set forth in KRS 61.823 prior to its November 8, 2007, special meeting. For the reasons that follow, we find the City violated the Act by failing to respond to the complaint, however, based on the written record before us we cannot resolve factual issue that the City violated KR 61.823 by failing to timely provide written notice of the meeting to the media organization, members of the council, and the public.
On November 12, 2007, Julia Hunter, staff reporter, Kentucky New Era, submitted a complaint to the presiding officer of the Oak Grove City Council, Mayor Dan Potter, in which she alleged that the city council violated the Open Meetings Act by failing to provide adequate notice of its special meeting to every member of the public agency, as well as media outlets, as required by KRS 61.823. As a means of remedying the alleged violation, Ms. Hunter requested that the City conduct a training session, addressing the Open Records and Open Meetings Acts and their importance, for the mayor, department heads and city council members, which should be held during an open city council meeting and should be scheduled in a timely manner.
In her letter of appeal, dated November 16, 2007, Ms. Hunter stated that the Mayor had yet to respond to her complaint. She further stated:
The mayor admitted that the council meeting was in violation of the Open Meetings Act, but continued the meeting. Before the meeting he told those in attendance they would be violating the law by conducting the meeting and allowed anyone who wished to leave to do so without consequence. Everyone stayed. Holding the meeting violated the Kentucky Open Meetings Act, KRS 61.823.
After receipt of notification of the Open Meetings appeal, Jason E. Holland, City Attorney, by letter dated November 20, 2007, provided this office with a response to the issues raised in the appeal. In his response, he advised in relevant part:
In response, it is my client's position that the facts asserted by Ms. Hunter are patently incorrect, rendering any legal conclusion based thereon incorrect as well. The City of Oak Grove sent an agenda of the special council meeting scheduled for November 8, 2007 at 6:30 p.m. to the Kentucky New Era via facsimile on November 7, 2007 at 1:47 p.m. This fact is documented by the attached facsimile broadcast report.
In a same day reply to the City's response, Ms. Hunter challenged the City's position, arguing in relevant part:
Although Mr. Holland attempted to redirect my claim, the issue at hand is not that the Kentucky New Era did not receive adequate notice, but also that the city council members and the public did not receive adequate notice. However, I have attached the original faxed meeting agenda from the City of Oak Grove to the Kentucky New Era. The time stamp at the top of the document indicates that it was sent at 1:23 p.m. Thursday. Simple arithmetic shows that is only five hours notice, a violation of the required 24-hour notice for open meetings.
Ms. Hunter further argued that the broadcast report attached to Mr. Holland's response only indicated that a fax was sent from his office to the Kentucky New Era -- not what that fax entailed.
Again on the same day, Mr. Holland responded to Ms. Hunter's reply, advising:
In her reply, Ms. Hunter repeatedly states that Mayor Potter admitted that this was a violation. However, at the time these statements were made, he was not privy to the documented evidence which proved that notice was faxed to the Kentucky New Era on November 7, 2007 at 1:47 p.m. The time-stamped copy attached to Ms. Hunter's reply was not the first notice that was sent to the New Era but rather the second. An employee of the New Era had contacted the City of Oak Grove on November 8, 2007 and stated that the New Era had not received a copy of the agenda, and requested a second copy. Further whether or not Mayor Potter thought that there had been a violation is not the determining fact in this case. Rather the determining fact is whether or not the City faxed a notice to the Kentucky New Era at least 24 hours prior to the special meeting held on November 8, 2007 at 6:30 p.m. . . .
Mr. Holland concluded by stating that the mayor's admission was based on a faulty premise, i.e. that the notice had not been sent when, in fact, it had.
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 A.2d 563, 564 (N. J. Super. Ch. 1982).
To promote this goal, the Open Meetings Act 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.
(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.
"The language of the statute directing agency action is exact." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed. . . ." In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. A copy of the written notice provided by both the City and Ms. Hunter indicates that it provides notice of the date, time, and place of the meeting and the agenda, as required by KRS 61.823(3). 1 However, the question before us is whether the City sent the written notice of the special meeting to be held on November 8, 2007, at 6:30 p.m. to the Kentucky New Era, members of the city council and the public, at least 24 hours before the special meeting was to occur. This question involves the resolution of a factual dispute which we cannot, on the written record before us, resolve.
The City contends that it provided the Kentucky New Era written notice of the November 8, 2007 at 6:30 p.m. meeting by facsimile on November 7, 2007, at 1:47 p.m. and offered a copy of a facsimile broadcast report of a fax sent to the New Era on that date and time which indicated that it was successfully transmitted, but the broadcast report does not indicate what that fax entailed, as Ms. Hunter argues. The City further asserts that it sent a second notice to the New Era on November 8, 2007, at 1:23 p.m. New Era acknowledges receipt of the November 8th notice, but does not acknowledge receipt of the City's November 7th notice. Insufficient and conflicting evidentiary record precludes the Attorney General from resolving this claimed violation. This office is not empowered to engage in independent fact-finding or to consider information that does not appear in the record, and conflicting statements in the record preclude us from finding that the City committed the alleged violations. 03-ORD-088.
Needless to say, if the City provided the written notice to the media, members of the city council, and the public, 24 hours before the special meeting was to occur then it complied with the requirements of KRS 61.823 . If the City sent written notice to the media, but not to all the council members, that would constitute a violation of the Act. KRS 61.823(4)(b) requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. 2 Failure to timely post the written notice to give public notice of the special meeting would also constitute a violation of the Open Meetings Act.
Although the record before us does not support the claimed violation, we note, in closing, that the City's failure to respond to Ms. Hunter's complaint constituted a violation of the Open Meetings Act. KRS 61.846(1) provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint, and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The Commission failed to issue a written response, and in so doing committed a procedural violation of the Open Meetings Act. We urge the City to review KRS 61.846(1) to insure that future responses conform to 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 proceeding.
Footnotes
Footnotes
1 The special meeting notice reads as follows:
CITY OF OAK GROVE
AGENDA
Thursday, November 8, 2007 at 6:30 p.m.
Special Council Meeting -- Council Chambers
8505 Pembroke Oak Grove Rd. Oak Grove, Kentucky 42262
CALL TO ORDER
NEW BUSINESS
2 Neither Ms. Hunter nor the City of Oak Grove address whether the requirement of posting written notice was met.