Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Raceland-Worthington Board of Education violated provisions of the Kentucky Open Meetings Act over a period of time, namely, KRS 61.820, KRS 61.810(2), KRS 61.823, and KRS 61.846(1). Based upon the evidence of record, this office finds that the actions of the Board were at least partially inconsistent with these provisions, and the Board clearly violated KRS 61.846(1) in failing to issue a written response upon receipt of Juanita G. Holbrook's written complaint dated June 28, 2009, although the record contains no evidence to suggest any violations were committed in bad faith. Insofar as Ms. Holbrook challenged the Board's practice of using a consent agenda (or voting "by consent" on routine matters), her complaint failed to state a claim which is cognizable under the Open Meetings Act.
By letter directed to Chairperson Steve Burkhardt on June 28, 2009, Ms. Holbrook made four separate allegations which, in relevant part, are set forth below along with relevant sections of Superintendent Frank Melvin's response to her appeal:
1. [I]n the constant rescheduling of the regular meetings (4 of the last 6 months), [the Board] is in violation of KRS [61.820]. In January, the [B]oard unanimously voted to hold its regular monthly meetings on the third Monday of each month, but the schedule is not being followed, as required by law. As it is, a majority of the "regular" meetings should be considered "special" meetings, and even at that, the [s]pecial [m]eeting rules and regulations are not being followed. . . . As it would be next to impossible for the citizens of this community to schedule regular attendance of the meetings with the schedule being changed from month to month, it is my request that the unanimously [approved] schedule that was set in January be adhered to from this point on. . . .
Response: The Board of Education schedules a regular [B]oard meeting at its organizational meeting each January. This year, the Board's regular meeting is the third Monday in each month at 7:00 p.m. at the [Board] Offices in Room 22. That schedule is made public and available to the Daily Independent Newspaper of Ashland, Kentucky.
Whenever it is necessary to reschedule a regular meeting due to conflicts with [B]oard members, the Board strictly complies with KRS 61.823 concerning special meetings. Specifically, a notice of the change of the meeting date is transmitted by facsimile to the [Daily Independent]; each [B]oard member receives written notice by email and US Mail; and [] the notice of the time and date and the full agenda is posted at the Board Office building where all notices are posted and in the other three schools of this District. Business conducted at the rescheduled meeting is conducted only with respect to the matters set [forth] in the agenda.
2. [The Board is also] in violation of KRS [61.810] in the matter of holding meetings (as defined in KRS [61.805]), with the [S]uperintendent, either individually or collectively, before each monthly meeting to go over what should be discussed in the meeting. This practice is nothing short of polling [B]oard members, and also denies the citizens of the community that attend the meetings to hear, and have answered, questions pertaining to agenda items and documents, as the questions are asked, answered, and discussed in private before the meeting. The practice circumvents the point of holding a public meeting.
It is my request that this practice cease, and that the [B]oard issues be discussed in public, as required by law. I do understand that this practice was in place long before the current [S]uperintendent was hired, and has become accepted because of the long[-]standing acceptance, but it is unacceptable to me, as a taxpaying citizen, as well as many other citizens that have discussed it with me.
Response: Before each [B]oard meeting, the Office of Superintendent prepares a "Board Book" with minutes from the prior meeting, [the] financial report, bills and other documents beneficial to the Board to review before the meeting. These "Board Books" are usually prepared by Thursday before the regular meeting conducted on Monday. The [B]oard members may stop by the Superintendent's Office on Thursday afternoon, Friday or any time Monday to pick up their individual books. On many of these occasions, they do not see the Superintendent, or if they do see the Superintendent, they pick up their books and leave. If a [B]oard member has questions about the contents of the [B]ook, they are certainly free to ask information from the Superintendent. On the night of each meeting, the [B]oard members who have not picked up their "Board Book" prior to that time usually stop by the Office of Superintendent to pick up their book. This has been a practice of the Board since approximately 1994. Usually, there are no more than two [B]oard members in the room shortly before the meeting, but on occasion more than two may be in the room. No polling of the Board is taken, and most comments are of a social nature, usually involving high school athletics and sporting events.
The [B]oard meeting is conducted on the second floor of the former Raceland High School building. In order to get there, the members must come in a door and go up one flight of steps to the floor where the Superintendent's Office is situated. They must then go up another flight of stairs to the Board Meeting Room. Many of them stop in the Superintendent's Office to just rest from coming up the first flight of stairs and they usually obtain a bottle of water and their "Board Book." The Superintendent's Office is somewhat large and has a table and chairs where some of the Board almost use it as a lounge before the meeting.
3. [T]he [B]oard is in violation of KRS [61.805] through [61.850], by voting "by consent" to not review and discuss the agenda items pertaining to Treasurer's Report, [b]ills, and bus trips. The "consent" voting basically allows the [Board] to conduct business and make decisions in private, outside of a public meeting. . . . The "agreeing by consent" [practice] denies the citizens the right to public knowledge of how their tax dollars are being spent, as well as the knowledge of where the [D]istrict stands financially with the current administration and [B]oard members in control. This practice again circumvents the point of holding and/or attending a public meeting. . . .
It is my request that each category be discussed, not just glanced over, during the meetings, and that a copy of the ["Board Book"] that is given to each [B]oard member, be available for [] public viewing either before or after each monthly meeting, in order that the viewing public can have an educated idea of what is actually taking place within the [D]istrict. . . .
Response: The procedure followed by the [C]hairman of the [Board] is first to ask for a motion approving the agenda. Once that is approved, he then requests a motion to approve by consent certain ministerial matters which include approval of the minutes of the prior meeting (or meetings) of the Board, approval of the Treasurer's Report, approval of the monthly bills, and approval of the bus trips.
This practice was adopted by the [Board] at the recommendation of the Kentucky School Boards Association. The KSBA recommended this practice to [streamline] the meetings and to reduce the number of [B]oard orders. If this practice is improper, the Board will stop this practice and will adopt each one of those items by individual resolutions.
4. [A]ny and all "Special Meetings" are not posted and made public as required by KRS [61.823] (as with the recent and all other Superintendent Evaluation meetings, the "retreats" that are regularly held in the [F]all, as well as work sessions, etc.)[.] Each of these examples, as well as other schedule [s]pecial [m]eetings are considered public meetings, and require specific agendas, along with time and place to be announced and posted.
It is my request that from this point forward these agendas, dates, times and places be announced and that the meeting [notices] be posted at the meeting place as well as the administration office, as required by law.
Response: With respect to all special meetings, including regular meetings which have to be rescheduled within the month due to the inconvenience of [B]oard members, financial deadlines, and other circumstances, the Board strictly complies with KRS 61.823. The Daily Independent Newspaper of Ashland, Kentucky, receives written notice by facsimile transmission. Each [B]oard member is given written notice of each special meeting by email and by US Mail. Those notices always include the agenda of the special or rescheduled meeting. Notice of the time, date and place of the [B]oard meeting along with the agenda is posted on the central bulletin board of the Board Offices where those notices are usually placed. Notices are also posted at all three schools operated by the District.
Having received no response to her written complaint, which the Board apparently received on July 2, 2009, Ms. Holbrook initiated this appeal on July 14, 2009. In addition to this procedural violation, the Attorney General finds, in accordance with prior decisions, that the actions of the Board were at least partially inconsistent with provisions of the Open Meetings Act in several respects.
Alleged violation of KRS 61.820
Pursuant to KRS 61.820:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall 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 of that public agency. The schedule of regular meetings shall be made available to the public.
Although Ms. Holbrook does not allege, nor does the record suggest that the Board failed to "provide for a schedule of regular meetings" or comply with the mandate to make that schedule available to the public, the Board also does not dispute that four of the last six regularly scheduled meetings were rescheduled. No explanation for this repeated failure to follow the regular schedule, which the Board unanimously approved, is given beyond a general reference to the "inconvenience of the [B]oard members, financial deadlines, and other circumstances." Even assuming the Board strictly complied with the notice requirements for special meetings codified at KRS 61.823(3) and (4) on each occasion, this office is compelled to remind the Board that special meetings are the exception to the "rule" of a regular schedule found at KRS 61.820.
The Kentucky Court of Appeals 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, Ky. App., 790 S.W.2d 450, 452 (1990). 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). 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. When viewed in light of the foregoing, and the Act in its entirety, 1 it logically follows that KRS 61.820 implicitly requires public agencies to "provide for" a regular schedule, make it available to the public, and then follow that schedule. Any other interpretation would operate to defeat the purpose for which KRS 61.820 was enacted and the "express purpose" of the Act itself. See 02-OMD-216 (finding no violation of KRS 61.820 as long as the agency's regular meetings were held at the time and place specified in the schedule). To the extent the Board consistently failed to follow its regular schedule, thereby impeding the ability of the public to attend, whether intentionally or not, it contravened KRS 61.820.
Alleged violation of KRS 61.810(2)
When construing KRS 61.810(1) 2 and (2), 3 the Kentucky Supreme Court has declared that "[t]he Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act."
Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998). On this issue, the reasoning contained in 00-OMD-63 and 03-OMD-92 is controlling; a copy of each decision is attached hereto and incorporated by reference. In defending the apparently long-standing practice regarding the "Board Book" and the related impromptu meetings at which no more than two members are usually present, "but on occasion more than two may be in the room," the Board relies on the fact that no "polling" is done, and "most comments are of a social nature." (Emphasis added.) However, the Attorney General has long recognized that KRS 61.810(2) "represented an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act. " 94-OMD-106, p. 3. Although "there is no empirical means by which this office can determine the members' intentions," the actions of the Board otherwise fall within the zone of prohibited conduct described at KRS 61.810(2) insofar as the members attending one or more of the meetings 4 collectively constituted a quorum and they discussed any public business other than for strictly educational purposes. 5 00-OMD-63, p. 6; 09-OMD-051; 03-OMD-092.
Use of a consent agenda
In 02-OMD-11, the Attorney General addressed this issue, noting that the Open Meetings Act "does not address the propriety of an agency's use of a consent agenda, and this issue has never been presented to the Attorney General." Id., p. 4. Our sole function, as narrowly defined at KRS 61.846(2), is to determine whether a public agency has violated the provisions of the Open Meetings Act. As in that decision, this office "can discern no violation of KRS 61.800 to 61.850 in the use of a consent agenda as long as the minutes of the [Board] meeting[s] "set[] forth an accurate record of votes and actions at [the] meeting[s]" in accordance with KRS 61.835. Id. In our view, the analysis found on page 4 of 02-OMD-11, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. See also 03-OMD-035 (copy attached). Although the public "'reasonably expects and heartily welcomes open and public debate on each and every issue upon which the agency is empowered to act,'" and Ms. Holbrook's point regarding the potential for abuse inherent in this practice is well-taken, the fact remains that "'no provision of the Act proscribes a consent agenda that obviates the need for debate.'" 03-OMD-035, p. 3, quoting 02-OMD-11.
Alleged violation(s) of KRS 61.823
In construing KRS 61.820, and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized:
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; 02-OMD-11. Here, Ms. Holbrook has alleged a violation(s) of KRS 61.823, and 61.823(3) in particular, in questioning the specificity of the agendas provided when special meetings are held. In addition, Ms. Holbrook has challenged the failure of the Board to place a copy of the notice in the "meeting place as well as the administration office" as KRS 61.823(4)(c) (previously KRS 61.823(4)(b)), requires. 6 Because the Board has demonstrated a familiarity with, and understanding of the mandatory notice requirements codified at KRS 61.823(3), and maintains that it "strictly complies" in every respect, and the record is devoid of any objective proof to the contrary, the Attorney General finds no violation of KRS 61.823(3). With regard to how specific agendas must be in order to provide adequate notice, this office refers the parties to 01-OMD-175, a copy of which is attached hereto and incorporated by reference.
In addressing Ms. Holbrook's allegation regarding KRS 61.823(4)(c), the Board advises that "[n]otice of the time, date and place of the [B]oard meeting along with the agenda is posted on the central bulletin board of the Board Offices where those notices are usually placed. Notices are also posted at all three schools operated by the District." Although this evidences a good faith effort on the part of the Board to comply with KRS 61.823(4)(c), the Board has not achieved strict compliance unless written notice has also been posted "in a conspicuous place in the building where the special meeting will take place" (the former High School building). With regard to application of this provision, 05-OMD-138, a copy of which is attached hereto and incorporated by reference, is controlling.
Violation of KRS 61.846(1)
In light of these determinations, the remaining question is whether the Board violated KRS 61.846(1) which, in relevant part, mandates:
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.
(Emphasis added.) In construing KRS 61.846(1), this office explained that it "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 Board did not respond upon receipt of Ms. Holbrook's complaint which, in all particulars, complied with KRS 61.846(1); the Board does not deny receiving the complaint nor has the Board offered any explanation for its failure to respond within three business days, which constitutes a violation of KRS 61.846(1). As the Kentucky Court of Appeals noted in reference to procedural requirements of the Open Records Act, "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-OMD-029, p. 4. This holding applies with equal force to parallel 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 See, for example, the notice requirements for special meetings codified at KRS 61.823(3) and (4); such requirements do not apply to regular meetings because KRS 61.820 requires public agencies to provide a schedule, knowledge of which is then imputed to the public. See also, KRS 61.815 (mandatory notice requirements relative to closed sessions).
2 KRS 61.810(1), the general mandate of the Act, provides:
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for [those circumstances outlined at (1)(a)-(m)].
3 Pursuant to KRS 61.810(2):
Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
4 KRS 61.805(1) broadly defines meeting as follows:
"Meeting" means all gatherings of every kind, including video teleconferences, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting.
5 In Yeoman, the Kentucky Supreme Court observed:
For a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency. Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action. Taking action is defined by the Act as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body." KRS § 61.805(3).
Id. at 474.
6 On appeal, the Board twice observes that each Board member is notified of each special meeting via both e-mail and U.S. Mail; however, the Board fails to confirm that any mailed notification is "calculated so that it shall be received at least twenty-four (24) hours before the special meeting" in accordance with KRS 61.823(4)(a). Effective July 15, 2008, KRS 61.823(4)(b) was amended to permit notification by e-mail to "public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail." The record is unclear as to whether any such written requests have been filed. Although the Attorney General finds no violation based on the limited evidence of record, this office does remind the Board of the need for strict compliance with these requirements in light of these unanswered questions.