Request By:
James C. Key
Duane Murner
John R. Fendley
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Oldham County Fiscal Court violated the Kentucky Open Meetings Act in failing to conduct its regular meetings at a time "convenient to the public"; more specifically, the question presented is whether the Fiscal Court violated KRS 61.840 in having regular meetings at 2:00 p.m. on the first and third Tuesday of each month. In light of the standard articulated by the Kentucky Supreme Court in Knox County v. Hammons, Ky., 129 S.W.3d 839 (2004), this meeting time may not properly be characterized as the most convenient for the public, but also does not violate KRS 61.820. Insofar as the Fiscal Court admittedly failed to issue a written response within three business days of receiving Mr. Key's written complaint, the Fiscal Court violated the express and mandatory terms of KRS 61.846(1).
In a written complaint directed to Judge-Executive Duane Murner on December 6, 2007, Mr. Key alleged that the "Fiscal Court is not following [the] KY Open Meetings [Act] when it meets at 2:00 pm [sic]," citing KRS 61.820 in support of his position. According to Mr. Key, this meeting time "limits the number of people who can attend and also the number of people who can run for office. This also hurts our county because qualified people can not [sic] help on non paying [sic] committees." Because "80% of Oldham County people work outside of Oldham County[,]" Mr. Key asserted they cannot "be at a 2:00 pm [sic] meeting." To remedy the violation, Mr. Key proposed "the meetings should be moved to 7:00 pm [sic], so that the public can attend. " Having received no written response to his complaint, Mr. Key initiated this appeal by letter dated December 27, 2007.
Upon receiving notification of Mr. Key's appeal from this office, Judge Murner belatedly responded on behalf of the Fiscal Court. Acknowledging that the Fiscal Court is a public agency within the meaning of KRS 61.805 (mistakenly cited as KRS 61.810), and "the time of regular meetings" is therefore governed by the Open Meetings Act, Judge Murner further acknowledges that KRS 61.820 contains "an applicable requirement that such meetings be held at a time that is convenient to the public." However, Judge Murner "denies that 2:00 PM meeting times for regularly scheduled sessions of the Oldham County Fiscal Court violate[] KRS 61.820." To the contrary, the Fiscal Court believes that 2:00 p.m. "is within the spirit as well as the letter of" the Open Meetings Act, and that 2:00 p.m. "is a time that is convenient to the Oldham County public." In support of its position, the Fiscal Court relies upon KRS 61.820 and KRS 67.090, 1 prior advisory opinions of this office such as OAG 95-26 and OAG 93-22, and Knox County v. Hammons, Ky., 129 S.W.3d 839 (2004). Based upon these authorities, the Fiscal Court argues that Judge Murner "is empowered to set the dates for regular meetings of Fiscal Court, but only Fiscal Court may set the time for their commencement (See county ordinance and KRS 67.090) at 'a time?convenient to the public,' (KRS 61.820)." Neither the General Assembly nor the courts "have explicitly defined 'convenient' under this subsection; therefore, it remains within the discretion of Fiscal Court to set a reasonable hour for regular meetings."
In Judge Murner's view, a statutory definition of the word "convenient, " for purposes of applying KRS 61.820, "would be tantamount to having the state legislature set actual times when public meetings may take place. Thus far it has declined to do so." Since a time "convenient to the public" has not been defined by the General Assembly or the courts, and "since the legally preferred, or, 'plain meaning' statutory construction of this provision begs that a reasonableness standard be applied when determining an agency's compliance" with KRS 61.820, "it follows that the actual setting of the time of regular meetings of Fiscal Court ought to be left to the Court itself, absent an unreasonable decision." Nothing the Fiscal Court has garnered from Mr. Key's complaint nor from reviewing the relevant authorities indicates "that 2:00 PM is anything but reasonable." As observed by Judge Murner, 93-OMD-20 "squarely addresses the issue" presented by placing the burden of proving that a time is inconvenient on the complainant. "Merely suggesting, as Mr. Key has done in his December 7 [complaint], that the Oldham Fiscal Court's regular meeting time of 2:00 PM is inconvenient to the public" because 80% of the residents "work outside of Oldham County sets out neither, a demonstrable nexus between those two propositions, nor, a sustainable criterion for setting a statutorily convenient meeting time."
In addressing the procedural issue presented, Judge Murner asserts that the Fiscal Court "takes seriously its mandate and the public policy set out" in the Open Meetings Act. 2 Although the Fiscal Court acknowledges that its response "was not given with[in] three days of receipt of Mr. Key's [complaint]," Judge Murner contends that "it would have been outside [the Court's] capacity to formulate a cogent response to Mr. Key within that three day time period. We feel that a hurried, or less than comprehensive, response would serve only to diminish the importance of the issues raised by Mr. Key's letter."
Notwithstanding KRS 61.846, Judge Murner contends that "the functional remedy for enforcement of any violation of the law on [O]pen [M]eetings is via a declaratory action in Circuit Court asking the court to void whatever decisions arose from that meeting, pursuant to KRS 61.848." 3 As further observed by Judge Murner, the Fiscal Court "is uncertain how to determine whether a constituent's letter to the County Judge should be treated as a complaint under the Open Meetings law, or simply addressed" on its own merits, "as might any other written request from a resident. " To summarize, the Fiscal Court reiterates that its research "has revealed that county ordinance, state statute, opinions of the Kentucky Attorney General, and the holdings of the Kentucky Supreme Court govern the meeting times of Fiscal Court in Oldham County," none of which are "dispositive of the proposition that Fiscal Court's regular meeting time of 2:00 PM presents a violation" of the Open Meetings Act.
In relevant part, KRS 61.820 provides that "[a]ll meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public"; the Open Meetings Act imposes a corollary duty on public agencies at KRS 61.840 by requiring that "all agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings." Resolution of the instant appeal turns on the former provision. In construing KRS 61.820, the Attorney General has observed:
The phrase "convenient to the public" is not defined or explained anywhere in the Open Meetings Act. It is obvious that the public agency has some flexibility and discretion in determining what is a convenient day and time. It is equally obvious . . . that no matter what day and time are selected . . . those decisions will meet with less than full and complete approval . . . ."
96-OMD-264, p 2. Accordingly, complainants have unsuccessfully challenged meetings held during the school day (95-OMD-106); at 9:00 a.m. (93-OMD-20); at 5:00 p.m. on Wednesday (96-OMD-264); and late into the evening (92-OMD-1728). See also 98-OMD-74. These decisions confirm that no time is convenient to each and every member of the public. Because no single day and time will meet with "universal approval," the Attorney General has given public agencies considerable latitude in scheduling their meetings, and has never held that a public agency intentionally scheduled a meeting at an inconvenient time as to the general public. Nor does the standard established by Hammons increase the likelihood of such a finding.
In that case, the taxpayers/appellees claimed that Knox County had violated the Open Meetings Act in passing an occupational tax ordinance and sought to have the ordinance declared void. Id. at 844. More specifically, the taxpayers argued that Knox County had passed the ordinance in violation of KRS 61.820 and KRS 61.840 by scheduling the special meeting of the Knox County Fiscal Court at which the ordinance was passed during the Daniel Boone Festival. Id . According to the taxpayers, Knox County did not conduct the meeting at a time or in a location that was "convenient to the public," and, therefore, the ordinance should be invalidated. Id . As observed by the Court:
There is no doubt that the Daniel Boone Festival is a major event in Knox County attracting large crowds, and that the area surrounding the Knox County Courthouse is extremely congested during the festival week. The record reflects that available parking near the courthouse during the festival is virtually non-existent, and that it is inconvenient to maneuver through the festival area to reach the courthouse. Furthermore, the Appellees also claim that the special meeting violated KRS 61.840 because it did not allow "effective public observation" of the proceedings. It is undisputed that numerous citizens were not able to enter the crowded district courtroom and observed the proceedings from the hallway.
Id . When viewed in context, such conditions did not constitute a violation of KRS 61.820 or KRS 61.840 in the Court's view.
Agreeing with both the trial court and the Court of Appeals, the Supreme Court found "that the Knox County Fiscal Court could have chosen a more convenient time for the special meeting, one that did not coincide with a busy county festival. " Id . Even if holding the meeting at that time was necessary, the Court reasoned, the fiscal court could have held the meeting at a location that was more convenient than the county courthouse, which was "literally the epicenter of activity." Id . That being said, the Court nevertheless concluded that the fiscal court did not violate KRS 61.820 in holding the special meeting at the designated time and place nor did the meeting conditions violate KRS 61.840. Id. at 845. Of particular relevance here, the Court engaged in the following analysis:
. . . Kentucky's Open Meetings Act does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times. The intent of the open meetings statutes is to ensure that government business is not conducted in secret, that the public is adequately notified of the time and nature of government proceedings, and that interested citizens be afforded the opportunity to participate in such proceedings. In short, the open meetings statutes are designed to prevent government bodies from conducting [their] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require agencies to seek out the most convenient time or location.
Id . Because the meeting at issue satisfied this standard, the Court determined that Knox County did not violate "either the letter or the spirit" of the Open Meeting Act. Id .
Although the Friday of the week during which the Daniel Boone Festival was held and the Knox County courtroom were admittedly not the most convenient time and location at which to conduct the meeting, "it certainly was not an inconvenient time or location. The fact that a large number of citizens did attend proves this point." Id . Noting the special meeting "was announced to the public, and there is nothing on the record to indicate that persons wishing to attend or participate in the proceeding were effectively prevented from doing so[,]" the Court did not find a violation of KRS 61.820 or KRS 61.840.
Here, Mr. Key makes the credible assertion that having regular meetings at 2:00 p.m. on a weekday "limits the number of people who can attend and also the number of people who can run for office." In addition, Mr. Key believes that qualified people are prevented from volunteering for committees of the Fiscal Court which, in turn, has a negative impact on Oldham County; Mr. Key's point is well-taken. That being said, the record on appeal does not support a finding that such a meeting time is inconvenient for the public in Oldham County when viewed in light of Hammons and prior decisions of this office. Public agencies are not statutorily required to conduct business "only at the most convenient locations at the most convenient times." Hammons at 845. While a 2:00 p.m. starting time "may be inconvenient for those who work during the daytime," and "while that time is apparently inconvenient for Mr. [Key]," this office is unable to conclude that the Fiscal Court violated KRS 61.820 based on the evidence presented. 93-OMD-20, p. 4; 95-OMD-106.
In light of this determination, the remaining question is whether the Fiscal Court 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.
(Emphasis added.)
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.
03-OMD-116, p. 2. As evidenced by the record, the Fiscal Court did not respond upon receipt of Mr. Key's complaint which, in all particulars, complied with KRS 61.846(1); 4 the Fiscal Court does not deny receiving the complaint nor has the Fiscal Court offered any explanation for the failure to respond within three business days which excuses the delay. 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 To clarify, our scope of review is narrowly defined by KRS 61.846(2) to issuing a decision, based upon the written record, indicating whether the public agency violated provisions of the Open Meetings Act --nothing more, nothing less. 04-OMD-029, p. 4; 98-OMD-74; 97-OMD-90. Accordingly, this office makes no finding relative to KRS 67.090 or any related issues raised by the Fiscal Court on appeal, nor may this office honor the Fiscal Court's related but separate request for "advice on what constitutes a request that would ripen into grounds for an 'appeal' if unanswered within three days" beyond the content of this decision.
2 According to Judge Murner, a copy of the Fiscal Court's "original response" to Mr. Key's complaint (dated December 6, 2007), "which was, and purely by coincidence, posted on the same day" the Fiscal Court received the notification of his appeal (distributed on January 2, 2008), is attached to his letter dated January 4, 2007; however, this office did not receive a copy of any such response unless Judge Murner is referring to Ordinance No. KOC 03-210-102, which the Fiscal Court adopted in accordance with KRS 61.820, a copy of which is attached for consideration. In any event, Judge Murner concedes that said response was not issued until beyond the permissible time frame, and a copy of the ordinance, standing alone, does not constitute a proper written response per KRS 61.846(1).
3 While KRS 61.846(2) does not authorize this office to impose penalties for violations of the Open Meetings Act, nor is the Attorney General empowered to declare void actions taken during a meeting that was improperly held or at which a violation occurred, such relief only being available in court per KRS 61.848, Judge Murner fails to recognize that an Open Meetings Decision, if not appealed within thirty (30) days, "shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or where the alleged violation occurred."
4 More specifically, Mr. Key stated "the circumstances which constitute an alleged violation of [the Open Meetings Act] ," explicitly referencing "KY Open Meetings" and KRS 61.820, specifically, and proposed a remedy; nothing more is required in order to trigger a public agency's obligation to respond per KRS 61.846(1).