Request By:
Tom Clinton
Mayor Michael W. Seiber
Keith Cartwright
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Earlington City Council violated the Open Meetings Act by failing to comply with the notice requirements found at KRS 61.823(3) prior to its November 12, 2007, special meeting. For the reasons that follow, we find that the council's failure to include an agenda in the written notice of the November 12 special meeting constituted a violation of KRS 61.823(3). Because the allegation that the council did not restrict discussion and action at the meeting to agenda items was not raised in the complaint to the council, we are foreclosed from determining whether the record on appeal supports this allegation.
On November 29, Messenger Executive Editor Tom Clinton submitted a written complaint to Mayor Michael W. Seiber in which he alleged that "the Earlington City Council conducted an illegal special meeting the night of November 12." He asserted that by letter dated May 8, 2007, The Messenger requested to be notified of all special meetings, and acknowledged timely receipt of the November 12 special meeting notice, but maintained that the notice was deficient insofar as it did not contain the meeting agenda. 1 As a means of remedying the alleged violation, The Messenger proposed that the council "take up those matters," upon which it had acted, at a future meeting and that it thenceforward provide agendas for special meetings with the meeting notices.
In a response dated December 5, 2007, Mayor Seiber responded to the allegations in The Messenger's complaint. He explained that the special meeting was necessitated by the belief that a quorum would not be present for the November 13 regular meeting. He reminded Mr. Clinton that the council provided timely written notice of the special meeting, consisting of the date, time, and place of the meeting, but admitted "that since it was a special-called meeting, [the council] should have provided [ The Messenger ] with an agenda. " It was his position that "there has been substantial compliance with notice requirements for a special-called meeting," and gave his assurance that the council "will work diligently to comply with the requirements for special-called meeting in the future," including the requirement that the notice provided includes the meeting agenda.
Shortly thereafter, The Messenger initiated this appeal disputing the council's assertion that "there has been substantial compliance with notice requirements for a special-called meeting," and focusing on its failure to address The Messenger's proposed remedy that it "take up the issues discussed at the illegal special-called meeting at a future meeting." This included an issue relating to a zoning change request for a property on Lee Trover Todd Jr. Highway that did not appear on the agenda which The Messenger belatedly obtained. On appeal, The Messenger asserted that because the issue was omitted from the agenda, "the action taken on the Lee Trover Todd Jr. Highway property was illegal." While we fully concur with The Messenger in its view that the special meeting notice which the city provided did not satisfy the requirements of KRS 61.823(3), we must refrain from commenting on the council's discussion of a zoning change request that did not appear on the meeting agenda because that allegation was not raised in its original complaint to the Mayor and council.
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, 790 S.W.2d 450, 452 (Ky. App. 1990). Echoing this view, the Kentucky Supreme Court has observed:
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, 955 S.W.2d 921, 923 (Ky. 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.
(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.
(Emphasis added.) "The language of the statute directing agency action is exact." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 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. 2
The failure to include an agenda of the items to be discussed in the written notices of the upcoming special meetings issued to the media is inconsistent with the principle of "maximiz[ing] notice of public meetings and actions," and represents less than strict compliance with the letter of the law. Ratliff at 923; 96-OMD-216. "Notice to the news media, " the Attorney General has observed, "is notice to the public," OAG 79-121, p. 2, and anything less than strict compliance is in derogation of "the public good. " Ratliff at 923.
The council acknowledges that its failure to provide The Messenger with a written notice of the November 12 special meeting that included an agenda constituted a violation of KRS 61.823(3). It nevertheless maintains that it substantially complied with the notice requirements of the Act. We disagree and remind the council that "any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance with the requirements of KRS 61.810, 61.815, 61.820, and KRS 61.823 shall be voidable by a court of competent jurisdiction." KRS 61.848(5) (emphasis added). The violation that The Messenger alleged, and that our review substantiates, was based on the council's failure to comply with KRS 61.823(3), a violation that is of no lesser gravity than the remaining class of violations that may arise under KRS 61.823. The record on appeal does not support the council's argument that it substantially complied with the notice requirements of the Open Meetings Act. 01-OMD-135; 02-OMD-11; 05-OMD-138.
In its letter of appeal, The Messenger alleges a second violation of the Open Meetings Act premised on an action taken by the council on a zoning change request that was not identified on the agenda for the November 12 special meeting that The Messenger belatedly received. While we recognize that The Messenger was handicapped in its ability to raise this issue in its original complaint by virtue of the fact that it did not obtain a copy of the meeting minutes and agenda until some time after the meeting occurred, we are foreclosed from addressing this allegation because the council did not have an opportunity to respond to it pursuant to KRS 61.846(1). The fact that it could have done so in its supplemental response does not alter our analysis. Simply stated, this issue is not ripe for review by the Office of the Attorney General. 40 KAR 1:030 Section 1; 00-OMD-109; 06-OMD-211; 06-OMD-257. The Messenger may, of course, submit a new written complaint to the Earlington City Council in which it alleges this violation and proposes a remedy. Should the council deny the violation in a written response, The Messenger may initiate a new open meetings appeal to the Attorney General. 3 Until it has done so, we must refrain from any comment.
In closing, we remind the parties that the role of the Attorney General in adjudicating open meetings appeals is narrowly circumscribed. The Attorney General is statutorily assigned the duty to issue "a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850 ." KRS 61.846(2). He is not empowered to declare void actions taken at an illegal meeting, impose penalties for violations of the Act, or compel an agency to implement the remedial measures proposed. It is instead incumbent on the parties to mediate the proposed remedies to a successful and mutually agreeable conclusion, or, failing this, seek redress in the courts. See 06-OMD-235 and authorities cited therein.
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 Mr. Clinton noted that The Messenger did not receive a copy of the November 12 special meeting agenda "until requested through open records on Nov. 28."
2 Neither The Messenger nor the Earlington City Council address the requirement of posting of the written notice, consisting of the date, time, and place of the meeting and the agenda , in a conspicuous place in the building where the meeting will occur and the building that houses the agency's headquarters at least 24 hours before the meeting.
3 The council may wish to review 01-OMD-175 (copy enclosed) in formulating its response to a newly submitted complaint in which this allegation is made.