Request By:
Rick D. Thompson
Rebecca Sams
Dallas J. Blankenship
Rocky McClintock
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 Scott County Board of Education violated the Open Meetings Act at its November 13, 2007, regular meeting by continuing to discuss public business after adjournment and recording the minutes of the meeting in such a way that the minutes failed to reflect adjournment and continued public discussion. We find that the conflicting evidentiary record precludes a determination that the Board violated the Open Meetings Act. Nevertheless, such post-adjournment discussions, if they did in fact occur, would clearly contravene the provisions of the Open Meetings Act. Any modification of the minutes "to show something other than what had actually occurred at the meeting" would also violate the Act. OAG 77-494, p. 2, quoted in 04-OMD-179, p. 9.
On May 2, 2008, Rick D. Thompson submitted a written complaint to Rebecca Sims, presiding officer of the Scott County Board of Education, in which he alleged that:
after adjourning the November 13 scheduled meeting I was allowed to address the Board but first said "I'm concerned I'm addressing the Board off the record." The Superintendent then offered to attach my prepared statement to the December minutes and I proceeded with my statement. This constitutes the first illegal meeting of the Board.
After finishing, I thanked the Board for hearing me. I was then encouraged with the Board's interest as a deluge of questions came forth eventually prompting the Board Attorney to admonish the line of questioning as inappropriate outside the Board being in session. The Board then chose to convene a new meeting and continued the questioning for approximately thirty minutes before adjourning again. This constitutes the second illegal meeting.
All that is reflected in the minutes is that I addressed the Board and the prepared statement that was to be attached to the December meeting became attached to the November minutes, with no mention of the first adjournment or the second convening.
As a means of remedying these alleged violations, Mr. Thompson proposed that "an item be listed on the May 13, 2008, board agenda acknowledging the illegal meetings occurred, alerting local media of the agenda item, and, after an explanation from the board, I be allowed to address the circumstance, read the prepared statement from the November illegal meeting, and summarize events that have occurred since the November illegal meeting." Having received no response to his request, Mr. Thompson initiated this appeal on May 13, 2008.
In correspondence directed to this office following commencement of this appeal, Board Attorney Rocky McClintock responded to the allegations of Mr. Thompson's complaint, attaching a copy of the Board's March 12 response to Mr. Thompson that apparently crossed his appeal in the mail. 1 Mr. McClintock advised:
As is set forth in my response to Mr. Thompson, there has been no violation of the Open Meeting laws. I have attached also the amendment that the Board has made to the minutes to accurately reflect all that happened. Mr. Thompson's assertion that the Board is in any way trying to "keep his concerns about school bus safety and operations off the record" is unfounded. Not only was his statement attached to the original Board minutes, but the meeting to address the Board was originally requested by him to be in a closed session. After the recess and discussions with him, he was informed that because he wanted to discuss personnel matters regarding other employees, who were not there, it would be a potential violation of their due process rights, and should not occur. Accordingly, it was determined that the meeting would occur in open session instead of in an executive session to discuss his other nonpersonnel concerns which were originally contemplated when the board took a recess and reconvened.
. . .
At all times it was the intention and the actions of the Board, and of the Board Attorney, for this to remain a continuation of the original Board meeting, and was open to anyone who wanted to be there.
The Board has amended the minutes to reflect and fully set forth what occurred at its May 13, 2008 meeting. I have attached a copy of that amended section as well. The original minutes did state that he had addressed the Board in open meeting, and that his written comments were attached. 2
The record on appeal reflects two widely disparate narratives of the events that occurred at the close of the November 13 Board meeting. Mr. Thompson asserts that the meeting was formally adjourned, and that he was thereafter permitted to address the Board and have his prepared statement placed in the meeting minutes. He further maintains that owing to "a deluge of questions" from Board members, and concerns expressed by the Board's Attorney, the Board "chose to convene a new meeting and continued the questioning for approximately thirty minutes before adjourning again." The minutes, he notes, only reflect that he addressed the Board" and contain his prepared statement. Conversely, the Board maintains that the meeting was not adjourned, but that instead "[a] recess was taken . . . so the Board could take a break and use the restroom before we continued." The Board avers that its Attorney counseled against a closed session discussion of Mr. Thompson's concerns, and that, prompted by these concerns, it "merely came back into the regular meeting after the recess. " The Board further asserts that the "minutes reflect that [Mr. Thompson] addressed the Board regarding [his] concerns, and [his] prepared statement was entered into the record to reflect that." Nevertheless, the Board acknowledges that the minutes "do need to be amended to show the full extent of what happened. "
Given this factual disparity, we cannot conclusively resolve the open meetings issues presented by this appeal. In 02-OMD-127, this office discussed at length the continuation of meetings and the distinction between recessed and adjourned meetings. A copy of that decision is attached hereto and incorporated by reference. At page 4 of that decision, we quoted from the Manual of Legislative Procedure , by Paul Mason, recognizing at Chapter 22, Sec. 214, page 173 that:
The basic distinction between adjournment and a recess is that an adjournment terminates a meeting, while a recess is only an interruption or break in a meeting. After an adjournment a meeting begins with the procedure of opening a new meeting. After a recess the business or procedure of a meeting takes up at the point it was interrupted.
Breaks in the meetings of a day, as for meals, are usually recesses, but termination of meetings until a later day are adjournments.
Quoting further from 4 McQuillen Mun. Corp. (3rd Ed.) § 13.38, we noted that "a regular meeting continues until terminated by an order of final adjournment or by operation of law. The adjournment may be proved only by the record. If nothing to the contrary appears in the record, the presumption exists that the adjournment was legal." 02-OMD-127, p. 5.
Here the record on appeal is silent on what transpired at the close of the November 13 regular meeting as reflected in the minutes of that meeting. We are therefore severely impaired in our ability to assess the propriety of the Board's actions. Accordingly, we find insufficient evidence in the record on appeal to support the claimed violations of the Open Meetings Act. Nevertheless, if the November 13 meeting had been adjourned, and additional business conducted afterward, such action by the Board would constitute a violation of the Open Meetings Act. See, e.g., 98-OMD-74; compare 00-OMD-147.
The only permissible modifications to the minutes of a meeting are those changes made "to conform (the minutes) to the facts, but not to . . . show something other than what had actually occurred at the . . . meeting." 04-OMD-179, p. 9; see also, OAG 78-346; OAG 78-796; OAG 79-96. As we noted in 04-OMD-179:
These opinions are premised on the notion that:
OAG 79-96, p. 3. To hold otherwise "would lessen, if not destroy, the faith of the public in the verity and permanence of public records." Janutola & Comadori Construction Co. v. Taulbee, 229 Ky. 213, 16 S.W.2d 1026, 1052, cited in OAG 78-346.
04-OMD-179, p. 9-10. A copy of 04-OMD-179 is attached hereto and incorporated by reference. That being said, the record in the appeal before us contains insufficient evidence to support the claim that the minutes of the November 13 meeting were similarly falsified. Because of the factual disparity on the underlying open meetings issue, and because the record is silent on the content of the unamended and amended meetings, we decline to assign error to the Scott County Board of Education
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 We will not belabor the issue of the Board's compliance with KRS 61.846(1). In a May 19 email addressed to the undersigned, Mr. Thompson noted that the Board's response was postmarked May 14 and reached him on May 16. We are confident that the Board is fully aware of its statutory obligations, and allowances must be made for days in the U.S. Mail.
2 Although the Board did not furnish us with a full copy of the meetingminutes, or those minutes as they appeared prior to amendment, the amended minutes read as follows:
m. A 10 minute recess was taken prior to Rick Thompson's requested address to the Board. Upon reconvening from the recess, prior to his address, discussion between the Board Attorney, and Mr. Thompson revealed that it would not be appropriate for Mr. Thompson to address the Board in executive session, as he had requested, as it would be concerning another employee(s), and it could be a violation of the employees due process rights without them being there. It was agreed that Mr. Thompson, School Bus Driver with Scott County School District, would address the Board as it continued in open session on his other concerns. Mr. Thompson expressed several concerns about safety. Mr. Thompson submitted a letter to the Board outlining his concerns and the letter is a part of the Board minutes.