Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Cumberland City Council failed to hold "at least one (1) 'regular' meeting" in the month of July, consistent with KRS 83A.130(11), or, in the alternative, a properly noticed special meeting in accordance with relevant provisions of the Kentucky Open Meetings Act. 1 Although the City Council was unable to hold its regularly scheduled meeting on July 14, 2009, due to lack of a quorum, the City Council held a special meeting on July 28, 2009, in compliance with KRS 83A.130(11) and the notice requirements for special meetings codified at KRS 61.823. With the exception of possibly failing to ensure that notice of the special meeting was calculated to be received at least twenty-four (24) hours before the meeting, as KRS 61.823(4)(a) requires, the City Council appears to have complied with KRS 83A.130(11), which, in relevant part, is consistent with provisions of the Act. In failing to issue a written response to Council Member Carl Hatfield's written complaint within three (3) business days, the Mayor, as presiding officer, violated KRS 61.846(1); however, this office cannot resolve the factual issue of whether the Mayor "sabotaged" the regular meeting based on the limited evidence of record, nor are the remaining issues presented justiciable in this forum.
By letter directed to Mayor Loretta Cornett on July 15, 2009, Mr. Hatfield submitted the following complaint:
In view of the fact that our regular scheduled meeting of July 14th was not conducted due to a lack of quorum, I am requesting that a special called meeting be conducted to fulfill the requirements of KRS 83A.130(1). Be reminded that special meetings cannot be conducted for the purpose of subverting the intent of public participation.
As a means of remedying the perceived violation, Mr. Hatfield proposed "that the following subjects be placed on the agenda for this special called meeting in addition to all other subjects that were to be discussed during the regular meeting" that was cancelled:
American Flag Display Project
Sale of Surplus Vehicles
Appointment of Nonelected Officers
Uniform Financial Reports (UFIRs)
Atmosphere and conditions during [C]ouncil meetings
Municipal Order - Conducting Council Meetings
Ordinance No. 258, Compensation of Council Members
Open floor for public comments
In closing, Mr. Hatfield noted that "[i]n the past, our regular schedule meetings when conducted have been curtailed or interrupted to the point that very little [C]ity business has been taken care of in a legal open to the public meeting." 2
Having received no response to his complaint, Mr. Hatfield initiated this appeal by letter dated August 1, 2009, (received August 3, 2009), arguing that Mayor Cornett has "failed to conduct regular open scheduled meetings to avoid [C]ouncil and public input. " Mr. Hatfield further alleged that Mayor Cornett "sabotaged" the regular meeting scheduled for July 14, by calling "four members of the [C]ouncil and the [C]ity [A]ttorney" to cancel the meeting due to lack of a quorum because "she was sick and would not be present." In support of this allegation, Mr. Hatfield attached a copy of articles from the Harlan Daily Enterprise and the Tri-City News, dated July 18, and July 22, respectively, neither of which is conclusive proof regarding the allegation of "sabotage." Also enclosed with Mr. Hatfield's appeal is a copy of the notice for the July 28, 2009, special meeting, which Mr. Hatfield apparently received "around 8:[00] PM on July 27th." Mr. Hatfield also reiterated his other complaint, namely that Mayor Cornett failed to include "the items contained on the agenda for the regular meeting" as well as the items that he "wished to discuss in the special called meeting." 3
Upon receiving notification of Mr. Hatfield's appeal from this office, City Attorney S. Parker Boggs responded on behalf of the City Council, noting that Mr. Hatfield "alleges that the [M]ayor is avoiding a regular meeting open to the public as required by KRS 61.870 through 61.884 [and] 83A.[130(11)],"and further advising that the "next scheduled regular meeting is Tuesday, August 11, 2009, at 6:30 p.m." According to Mr. Boggs:
The Cumberland City Council, by ordinance, has regular scheduled meetings on the second Tuesday of every month at 6:30 p.m. in City Hall. The Council met in 2009, every month with the exception[s] of February and July, due to there being no quorum. There were open meetings held during the months of January, March, April, May, and June, 2009. There were special called meetings [which presumably were "open" as well even though not regular meetings] during the months of January, March, May, June, and July, 2009.
Much of what Mr. Carl Hatfield cites in his open meetings appeal dated August 1, 2009, about the [M]ayor "sabotaging the regular meeting" is simply hearsay. There is a lot of political posturing between former Mayor Carl Hatfield and current Mayor Loretta Cornett. Mr. Hatfield has never put together a request with a majority of the Council members for any special session. He is a lone voice on the Council who is critical of Mayor Cornett. 4
The record on appeal is devoid of evidence to conclusively refute any of these assertions; consequently, this office makes no finding on the factual issue of whether the Mayor "sabotaged" the regular meeting scheduled for July 14 or any of the other general allegations regarding the "ongoing practice" of not holding regular meetings "to avoid council and public input. " Because the Open Meetings Act does not mandate inclusion of any particular items on the agenda for a special meeting, and the City Council therefore cannot be said to have violated any provision of the Act in failing to include those items that Mr. Hatfield wished to discuss, our analysis focuses primarily on whether the City Council otherwise complied with provisions of the Act relating to special meetings. 5
To begin, this office is compelled to clarify that no provision of the Open Meetings Act endows the public with the right to participate in public meetings by comment. As the Attorney General has repeatedly observed:
While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency.
95-OMD-99, p. 3; 00-OMD-169. In other words, "participation by public comment is strongly encouraged," but "is not a right that can be enforced under the Open Meetings Act. " 00-OMD-169, p. 4. Accordingly, the Council cannot be said to have violated the Act in declining to allow "public participation" or "input. "
In construing KRS 61.820, pursuant to which all meetings of all public agencies in Kentucky, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public" and a "schedule of regular meetings shall be made available to the public," and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized:
There are only two kinds of meetings - regular meetings and special meetings.
Regular meetings are held at specified times and places which are convenient to the public. Public agencies must 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 particular agency. [KRS 61.820].
Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)[(a) and (b)], there are also posting requirements (KRS 61.823(4)[(c)]). 6 These requirements must be met each time for each called special meeting.
94-OMD-50, p. 4. "When the public agency deviates from its regular meeting schedule and reschedules that regular meeting, " this office has observed," the rescheduled meeting becomes a special meeting. " 92-OMD-1473, p. 2; 92-OMD-1677; 99-OMD-153; 01-OMD-175; 02-OMD-127. As the Attorney General noted at page 4 of 92-OMD-1677, "[t]he public has a right to expect a public agency . . . to follow its regular schedule or to call special meetings following the required notice, delivery, and posting provisions pursuant to KRS 61.823."
Here, the Council admittedly cancelled its regular meeting on July 14 due to lack of a quorum, but properly rescheduled the meeting for July 28, when it was, by definition, a special meeting; this action was entirely consistent with KRS 83A.130(11) as well as the Open Meetings Act. In our view, the only provisions implicated on the facts presented are KRS 61.823(3) and (4)(a), pursuant to which:
(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. . . .
(Emphasis added.) Mr. Hatfield has not alleged nor would the record support a claim that the Council failed to provide written notice or that said notice did not contain the date, time, and place of the special meeting in dispute as well as the agenda; 7 rather, Mr. Hatfield challenges the failure of the Council to include specified items on the agenda, instead of merely discussing "Any necessary discussion or action of the 2009-2010 Budget, " which is not a justiciable issue given that no such requirement is found in the Act. Unless and until a quorum of the Council wishes to call a special meeting, in accordance with KRS 61.823(2), and establish its own agenda, this office has no basis upon which to find a violation.
It appears that the City Council complied with KRS 61.823(4)(a) in relation to the July 28 special meeting, with the possible exception of not ensuring that written notice was delivered to every member of the agency at least 24 hours before the special meeting began at 6:30 p.m. Mr. Hatfield apparently did not receive his notification until "around 8[:00]PM on July 27th," as the copy attached to his appeal reflects. In the absence of any evidence to the contrary, this office must assume that his notation to this effect is accurate. To this limited extent, the City Council failed to strictly comply with KRS 61.823(4)(a).
In light of this determination, the remaining question is whether the City Council violated KRS 61.846(1), which, in relevant part, requires:
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. 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 City Council did not respond upon receipt of Mr. Hatfield's complaint nor has the City Council denied receiving the complaint. On appeal, the City Council offered no explanation for the failure to respond in a timely fashion.
As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings 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. 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, the Attorney General 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 In relevant part,KRS 83A.130(11) provides:
. . . Regular meetings of the council shall be held at least once each month at such times and places as are fixed by ordinance. Special meetings of the council may be called by the mayor or upon written request of a majority of the council. In the call, the mayor or council shall designate the purpose, time and place of the special meeting with sufficient notice for the attendance of council members and for compliance with KRS Chapter 61. At a special meeting no business may be considered other than that set forth in the designation of purpose. . . .
2 By letter directed to Mayor Cornett on July 28, 2009, Mr. Hatfield supplemented his complaint as follows:
As a result of your deliberate and devious intentions to avoid public and [C]ouncil input, our July 14th regular scheduled [C]ouncil meeting which [sic] was not convened due to lack of quorum.
By calling [C]ouncil members and informing that there would not be a [C]ouncil meeting as scheduled, then you arrive for the meeting and deny informing two members present that the meeting was cancelled, [sic] this leads me to believe that you are intentionally subverting the rights of some [C]ouncil members and the general public to take part in [C]ity affairs.
Furthermore, your refusal to reschedule the regular meeting as required by statute, and your refusal to place the topics on the special called meeting for this evening that I requested is more proof that you are abating my rights as a member of the [C]ity [C]ouncil and as a citizen of this [C]ity.
In light of the foregoing, Mr. Hatfield asked Mayor Cornett to "take immediate action to reschedule our regular meeting with the full agenda that was supposed to be addressed and that [C]ouncil and public input be allowed without restrictions."
3 Although Mr. Hatfield further alleged that the Mayor "scheduled a special called closed session meeting for the purpose of addressing the FY 10 budget, " the City Council ultimately disputed that allegation, indicating that "it was an open meeting with press and public in attendance," as the notice attached to his letter of appeal confirms. In any event, Mr. Hatfield focuses primarily on the Mayor's failure to include all of the previously listed items and those he suggested on the agenda for the special (open) meeting.
4 KRS 61.823(2) provides that "[t]he presiding officer or a majority of the members of the public agency may call a special meeting. " Although other members of the Council are quoted in the referenced newspaper articles, a few of which are in favor of Mayor Cornett's resignation, the record is devoid of evidence that a majority of the members called for a special meeting. In any event, said articles do not constitute conclusive proof regarding any of the issues presented.
5 By letter dated August 12, 2009, but received on August 13, 2009, Mr. Hatfield noted that both of the two regular meetings that were cancelled "were not rescheduled as required by KRS 83A.130(1)." Noticeably absent from the record is any conclusive proof to substantiate this assertion. Because Mr. Hatfield challenged only the July meeting in his complaint(s), any issues relative to the February meeting are not ripe for review. Mr. Hatfield further argued that "Mr. Boggs' reference to hearsay is nullified due to the comments of the other [C]ouncil members." Suffice it to say that Mr. Boggs' characterization was accurate; newspaper articles do not constitute conclusive proof. In closing, Mr. Hatfield clarified that, in his view, the July 28 special meeting was a "closed" meeting (as opposed to a closed session under KRS 61.815) insofar as the agenda contained "one topic, a budget reading, without public input, " and reiterated his primary complaint that "certain documents" and "other projects" were not included on the agenda for consideration. In sum, the reply does not alter the relevant analysis or the outcome.
6 Effective July 15, 2008, KRS 61.823 was amended to authorize transmission of the required notice by electronic mail (KRS 61.823(4)(b)) in addition to the methods identified at KRS 61.823(4)(a), and the posting requirement previously codified at KRS 61.823(4)(b) is now codified as KRS 61.823(4)(c).
7 With regard to how much specificity is required in theagenda to ensure fair notice to the public, this office has recognized:
While we believe that the [agency] might have employed more specific language in describing the contemplated action, namely the vote on extending the President's contract, [or, in this case, "Any necessary discussion or action of the 2009-2010 Budget, "] in the meeting agenda, we are not prepared to say that the agenda item was so vaguely worded that fair notice could not be imputed to the public. Certainly, it cannot be equated with such vague descriptions as "old business," and "new business."
02-OMD-22, p. 7. Because Mr. Hatfield does not challenge the adequacy of the notice provided, nor was the item "so vaguely worded that fair notice could not be imputed to the public," further consideration of this issue is unwarranted. See 03-ORD-149, a copy of which is attached hereto and incorporated by reference, for additional discussion. This office has no reason to question whether discussions and action were limited to the item listed as KRS 61.823(3) also requires.