Request By:
Bill Lippert
Barty Bullock
William M. Thompson
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 Pulaski County Fiscal Court violated the Open Meetings Act by failing to identify the specific provision of KRS 61.810(1) authorizing its closed sessions in contravention of KRS 61.815(1)(a), by failing to adopt and/or adhere to a schedule of regular meetings in contravention of KRS 61.820 and provide adequate notice of special meetings (rescheduled regular meetings) in contravention of KRS 61.823 , by failing to conduct roll call votes in contravention of KRS 61.835, and by failing to respond to the open meetings complaint in which these allegations were made in contravention of KRS 61.846(1). For the reasons that follow, we find that the record on appeal supports the allegations that the Fiscal Court violated KRS 61.815(1)(a) and KRS 61.846(1). Although the record on appeal does not contain sufficient proof to support the allegations that the Fiscal Court violated KRS 61.820, KRS 61.823, and KRS 61.835, we note certain irregularities in the Fiscal Court's response to these allegations which we will address.
In his September 11, 2008, complaint to Pulaski County Judge/Executive Barty Bullock, Bill Lippert identified "several situations in which it appears that one or more of [the provisions of the Open Meetings Act] is not being followed." 1 With reference to the alleged violation of KRS 61.815(1)(a) , Mr. Lippert noted that "[t]he Fiscal Court has been criticized in the local newspaper regarding its use of closed sessions, and it has been suggested that the procedure is being used to prevent the public from being aware of what is transpiring." With reference to the alleged violation of KRS 61.820, Mr. Lippert questioned the existence of a schedule of regular meetings, and identified seven occasions on which meetings were held on dates that did not fall on the presumed "second and fourth Thursday of the month at 10:00 a.m." regular schedule. With reference to the alleged violation of KRS 61.835, Mr. Lippert asserted that "[a]n 'accurate record of votes' should include more than the simple statement 'Motion carried,'" and urged the Fiscal Court to employ a roll-call vote. As a means of remedying these alleged violations, he proposed that the Fiscal Court strictly comply with KRS 61.815, KRS 61.820, and KRS 61.835, and that it adopt a written schedule of regular meetings and cease deviating from same.
In correspondence directed to this office following commencement of Mr. Lippert's appeal, that included Judge Bullock's undated response to the complaint, Pulaski County Attorney William M. Thompson acknowledged the Fiscal Court's failure to issue a timely response to the Mr. Lippert's complaint, but dismissed his allegations as meritless. Mr. Thompson maintained that "[t]he exact reason under KRS 61.810 for every closed meeting is given prior to the county going into Executive Session, " and attached minutes of meetings dating back to January 2007 to support this defense. He rejected the claimed violation of KRS 61.820, noting that Fiscal Court "meeting dates have been the same for over seven years," and provided Mr. Lippert with highlighted minutes dated January 2, 2007, confirming the recent adoption of this schedule. 2 Mr. Thompson explained that "meeting dates are rarely moved, always for good reason, and the proper notice is given under the statute stating the time and date." 3 Finally, Mr. Thompson asserted that "[t]he minutes accurately record the votes pursuant to KRS 61.835," and suggested that Mr. Lippert review Roberts Rules of Order to determine "what the effect of a Magistrate not casting a vote [is]." 4
Having reviewed the record on appeal, we do not agree that Mr. Lippert's allegations are without merit. While that record contains insufficient proof to support some of those allegations, we agree with Mr. Lippert that the Fiscal Court violated KRS 61.846(1) by failing to issue a timely written response to his open meetings complaint, and KRS 61.815(1)(a) by failing to observe the prerequisites for conducting a closed session. In the interest of brevity, we will summarily address the fiscal court's noncompliance with KRS 61.846(1). That statute requires public agencies to "determine within three [business] days after the receipt of the complaint whether to remedy the alleged violation . . . and notify in writing the person making the complaint, within the three day period, of its decision." The Fiscal Court's failure to do so, whether inadvertent or otherwise, constituted a violation of the Open Meetings Act.
So, too, did the Fiscal Court's failure to strictly comply with the prerequisites for conducting a closed session codified at KRS 61.815(1)(a). That statute provides that "[n]otice must be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session, " and has been construed by the Kentucky Supreme Court to require an agency to " state the specific exception contained in the statute which it relied upon," and give " specific and complete notification . . . of any and all topics which are to be discussed during the closed meeting. "
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997). We find that 03-OMD-221, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue. "The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good. " Ratliff at 922. The minutes furnished by the Fiscal Court demonstrate that before entering a closed session, the Court references the subject with a single identifier, e.g., "litigation" or "personnel, " and nothing more. This practice does not satisfy the spirit or the letter of the Open Meetings Act, and therefore "violates the public good. "
We do not find sufficient evidence in the record on appeal to support Mr. Lippert's claim that the Fiscal Court violated KRS 61.820 by failing to adopt a schedule of regular meetings. That statute requires all public agencies to hold their meetings "at specified times and places which are convenient to the public . . .[,] provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business . . .[, and make t]he schedule of regular meetings . . . available to the public." The Fiscal Court advises that it has long been its practice to conduct its regular meetings on the second and fourth Tuesday of each month at 10:00 a.m., and that a motion to that effect was made, and adopted, as recently as January 2, 2007, as reflected in the minutes of the meeting tendered to this office and Mr. Lippert. KRS 61.820 does not specify what form the regular meeting schedule must take or the frequency with which it must be adopted. Given the fact that no changes in the regular meeting schedule have been made since January 2007, we find that the tendered January 2 meeting minutes satisfy, albeit minimally, the KRS 61.820 requirement. We attach hereto a copy of 03-OMD-021 for purposes of comparison and contrast, and urge the Fiscal Court to review that decision to insure strict compliance with the notice requirements for conducting special meetings, including rescheduled regular meetings, now and in the future.
Nor do we find sufficient evidence in the record on appeal to support Mr. Lippert's claim that the Fiscal Court violated KRS 61.835 by failing to maintain adequate minutes of its meetings. That statute requires agencies to promptly record "minutes of action taken at every meeting . . . setting forth an accurate record of votes and actions at such meetings." Mr. Lippert argues that the Fiscal Court should employ a roll-call vote to promote accountability, and the Fiscal Court responds that "all yes votes are recorded as motion carried . . . [and i]f a no vote is cast, it is added to the minutes. " Our admittedly cursory review of the Fiscal Court meeting minutes since January 2007 confirms that the overwhelming majority of its votes were unanimous, and that on only a few occasions was a roll-call vote taken. 5 Assuming that all "motions carried" passed unanimously, we find no error in its practice. We attach hereto a copy of 05-OMD-188, and refer the parties to the discussion at pages 3 through 6 for additional guidance.
We conclude that Mr. Lippert's complaint was not meritless, and that two of his four claims of violation were substantiated, specifically, his claimed violation of KRS 61.846(1) and KRS 61.815(1)(a). With reference to his remaining claims, we find insufficient proof to substantiate noncompliance with KRS 61.820 and KRS 61.835, but encourage the Pulaski County Fiscal Court to review the open meetings decisions appended hereto to insure strict compliance with the requirements of 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 proceedings.
Footnotes
Footnotes
1 Mr. Lippert's allegations do not relate to specific meetings, but are more general in nature. Because KRS 61.846(1) requires a complainant to "submit a written complaint . . . stat[ing] the circumstances which constitute an alleged violation," but does not require a complainant to reference specific dates and times, we believe his allegations are justiciable under KRS 61.846(2).
2 Those minutes include the following: "Motion was made by Magistrate Maxey and Seconded by Magistrate Barnett to set the date and time for future Fiscal Court meetings on the 2nd and 4th Tuesday of each month at 10 a.m."
3 In his belated response to Mr. Lippert's complaint, Judge Bullock indicated that it was the Fiscal Court's practice to "notify the media, all county department heads, and have personnel inform the public of the change during the supposed regular court meeting for all special meetings." Judge Bullock does not indicate what that notice consists of, whether the notice is transmitted to the fiscal court members, whether it is posted, or how it is transmitted. Given the paucity of information provided, it is not entirely clear that "proper notice is given."
4 Judge Bullock's belated response amplified on this statement. He explained that "[a]ll yes votes are recorded as motion carried . . . [and i]f a no vote is cast, it is added to the minutes. "
5 These roll-call votes occurred on January 2, 2007, January 22, 2007, October 23, 2007, March 25, 2008, June 10, 2008, August 12, 2008, and August 26, 2008.