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 Bonnieville violated the Open Meetings Act by failing to respond to the open meetings complaint of W. John Bourne, 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 12, 2007, special meeting. For the reasons that follow, we find the City violated the Act by failing to respond to the complaint in writing within three business days of its receipt and because City acknowledged at its November 12, 2007, special meeting that it had failed to provide proper notice of special meeting, as required by KRS 61.823, the City admitted a violation of the Act.
By letter dated, November 12, 2007, Mr. Bourne submitted a complaint to the Bonnieville City Council in which he alleged that the city council violated the Open Meetings Act by failing to provide adequate notice of its special meeting, as required by KRS 61.823. As a means of remedying the alleged violation, Mr. Bourne requested that the city council read and abide by KRS 61.823.
In his letter of appeal, dated November 26, 2007, Mr. Bourne indicated that, as of that date, he had received no response to his complaint.
After receipt of notification of the appeal, Charles D. Williams, counsel for the City, provided this office with a response to the issues raised in the appeal. In his response, he advised that, in response to Mr. Bourne's letter, the City adjourned its November 12, 2007, meeting, once the City Attorney advised them that they were not in compliance with the statute and that no action was taken at the meeting.
We begin by noting procedural irregularities. Mr. Bourne's open meetings complaint did not conform to the requirements of KRS 61.846(1). That statute provides:
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. . . . 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.
(Emphasis added). Mr. Bourne's complaint was addressed to the "Bonnieville City Council." To the extent that Mr. Bourne's complaint was not directed to the Mayor, the presiding officer, but instead to the city council, it did not conform to the requirements of KRS 61.846(1). Enclosed with his letter of appeal and letter of complaint was a November 14, 2007, newspaper article concerning the November 12, 2007, special meeting. The article states that "Moments before the special meeting on Monday, November 12th began, citizen John Bourne handed Mayor Tommy Atteberry a letter stating that the special meeting was in violation of KRS 61.823 . . . ." This is consistent with Mr. Bourne's statement and the City's response, i.e., the Mayor and the City Attorney discussed the letter, returned to the council and the City Attorney advised them that they were not in compliance with the statute and the meeting was then adjourned.
Under the facts of this case, we find that although the complaint was defective on its face, in that it was directed to the city council rather than to the presiding officer of the public agency, the complaint was submitted to the Mayor, the presiding officer, and he acted upon the complaint. To hold otherwise would be to elevate form over substance. As noted in 00-OMD-156, "the rules of procedure governing the . . . Open Meetings Act 'should be relaxed to permit the greatest possible access to this forum, and . . . a rule of substantial compliance should generally be applied.'" 00-OMD-156, p. 3, citing 92-ORD-1449, p. 2. However, the fact that the Mayor acted on the complaint at the meeting did not relieve him of the requirement to respond to the complaint in writing within the three (3) day period, particularly when the complaint requests that the agency take action in the future. 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.
To remedy the situation, Mr. Bourne requested that the council read and abide by KRS 61.823 for all their future special meetings. Accordingly, we find that the failure of the City to respond to Mr. Bourne's complaint in writing within the three-day period constituted a violation of KRS 61.846(1) and the Open Meetings Act.
Notwithstanding the above, upon receipt of Mr. Bourne's complaint at the November 12, 2007, special meeting, the City acknowledged that it had failed to provide proper notice of the special meeting, as required by KRS 61.823, and, thus, admitted violating the Act.
For future guidance in providing proper notice of special meetings, we offer the following observations. The law imposes a duty on public agencies to provide written notice of all special meetings. Indeed, "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). Failure to comply "with the strict letter of the law in conducting meetings of a public agency violates the public good. " Id., citing
E. W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990). Underlying these observations is the fundamental principle that "the formation of public policy is public business and shall not be conducted in secret. . . ." KRS 61.800.
In 92-OMD-1840, this office observed:
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 schedule 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, the 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.
92-OMD-1840, p. 3. KRS 61.823 thus 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 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. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(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 noted, anything short of strict compliance with these requirements "violates the public good. " Ratliff at 923. Inadequate notice of public meetings necessarily precludes public attendance at those meetings.
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.