Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Rockcastle County Fiscal Court violated the Open Meetings Act in failing to accurately record how each member voted regarding a pay increase for the Fiscal Court Clerk during a meeting, the date of which is unclear from the record on appeal. Inasmuch as the Fiscal Court did not provide this office with a copy of the "backup record," which allegedly confirms the accuracy of the "official record," or the minutes of the meeting, this office is unable to affirm the agency's position. To the extent the Fiscal Court failed to accurately record "how each member voted or if he abstained, " unless the vote was unanimous, in which case it "was sufficient to so state in the minutes" of that meeting, it violated KRS 61.835. OAG 91-196, p. 2. In addition, the Fiscal Court violated KRS 61.846(1) in failing to issue a written response to Michael Sheliga's complaint alleging a violation of KRS 61.835. 1
By letter directed to Judge-Executive Buzz Carloftis on March 26, 2010, Mr. Sheliga made various requests under the Open Records Act regarding "magist[erial] retirement and expense benefits, coal severance tax allotments and coal lobbying payments," and submitted a complaint under the Open Meetings Act regarding the record of "the voting on the occupational tax clerk salary increase. " Mr. Sheliga subsequently initiated appeals from the disposition of each request and his complaint. Our analysis in this decision focuses exclusively on the issues arising under the Open Meetings Act, specifically KRS 61.835 and KRS 61.846(1). 2
Mr. Sheliga asked the Judge-Executive, in his capacity as presiding officer of the Fiscal Court, to "set forth an accurate record of votes' relating to the $ 12,000 pay increase the [F]iscal [C]ourt [C]lerk was given when she assumed occupational tax duties." According to Mr. Sheliga, the minutes "in the book in County Clerk Normal [sic] Houk's office only indicate that the [C]ounty [J]udge [E]xecutive put forth a motion for this pay increase and that Squire McKinney seconded it." Since this was "an important vote on a controversial issue," Mr. Sheliga wished to know "how all magistrates voted, " and believes "that KRS requires that you record such votes in meeting minutes. " In his May 25, 2010, letter of appeal, Mr. Sheliga indicated that the "Clerk verbally indicated" to him that "this information would be corrected. " Mr. Sheliga has "not been informed that the [Fiscal Court] has updated [its] meeting minutes relative to the [F]iscal [C]ourt [C]lerk raise," and he maintains that the "official meeting minutes kept in the [C]ounty [C]lerk's office" concerning the pay raise do not accurately reflect how the members of the Fiscal Court voted.
Upon receiving notification of Mr. Sheliga's appeal from this office, Judge- Executive Carloftis, in relevant part, 3 merely advised that "Back-up [sic] records indicate the vote and the official record indicates the vote." This office infers from his unsubstantiated assertion that either a recording of the meeting exists or the "backup record" is the unofficial copy of the minutes. Likewise, this office must assume that "official record" refers to the approved minutes of the meeting at which a vote regarding the salary increase for the Fiscal Court Clerk occurred. The record on appeal is devoid of any objective proof (minutes, whether approved or unapproved, or a recording) and it remains unclear exactly what is meant by "indicates the vote." Even if the "backup record" and the "official record" mirror each other, the Fiscal Court has not attempted to clarify whether the record(s) indicate how each member voted on the issue.
Appeals arising exclusively under KRS 61.835 "are rare," presumably because the provision is "clear on its face." 04-OMD-182, p. 6. Addressing the requirements of KRS 61.835 relative to ad-hoc committees which served a strictly advisory function, the Attorney General determined that minutes must be maintained, even if those minutes reflect only that the public agency convened, approved the minutes of the last meeting, and adjourned. See 00-OMD-96; 95-OMD-64. In other words:
KRS 61.835 sets forth the minimal requirements pertaining to the keeping of the minutes of a public agency. . . . If at the meeting in question nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to public inspection. While some agencies may by their own regulations require more thorough minutes, the Open Meetings Act requires only what is set forth in KRS 61.835 relative to the minutes.
95-OMD-64, p. 4.
Early on, the Attorney General construed this provision, which has remained intact since being enacted in 1974, as requiring the minutes of a meeting held by a public agency to reflect only "the formal actions taken and the votes cast by the members," and not requiring the minutes of the meeting "to summarize the discussion or record what any of the members said." OAG 81-387, p. 2. In so holding, this office relied upon the express language of the statute as well as "the foremost authority on parliamentary procedure, Roberts' Rules of Order, Newly Revised, Scott Foresman and Company, § 47, pp. 389-391. [(1970) indicating] that minutes should contain mainly a record of what was done at the meeting, not what was said by the members." Id., p. 1. On this basis, the Attorney General concluded that "anything more than [a record of votes and actions] is a matter of parliamentary procedure and [falls within] the discretion of the public body." Id.
Shortly thereafter, the Attorney General clarified this position as to the necessity of recording the name of the person who makes or seconds a motion:
The customary practice in parliamentary bodies is to record in the minutes the name of the person who makes or seconds a motion, but such is not required by the statute. It is required, however, that the minutes show how each member voted or if he abstained. If the vote was unanimous it is sufficient to so state in the minutes.
OAG 82-412, p. 2 (emphasis added). The Attorney General subsequently reaffirmed this principle, holding that KRS 61.835 requires "that the minutes of the meeting show how each member voted or if he abstained except, if the vote was unanimous, it is sufficient to so state in the minutes. " OAG 91-196, p. 2. In sum, the minutes of the meetings "may contain more than the minimum statutory requirement, they may not contain less." 98-OMD-119, p. 5.
Given the limited and conflicting evidence of record, this office has nothing to refute Mr. Sheliga's allegation regarding the agency's failure to comply with KRS 61.835. To the extent the Fiscal Court failed to document "how each member voted or if he abstained, " unless the vote was unanimous, in which case it "was sufficient to so state in the minutes" of that meeting, it violated KRS 61.835. OAG 91-196, p. 2. Because Mr. Sheliga advised that the Clerk "verbally indicated" to him that "this information would be corrected, " and the Fiscal Court has not refuted his contention, this office is compelled to clarify that in revising the minutes of prior meetings, the Fiscal Court may not alter the minutes "to show something other than what actually occurred at the previous meeting." OAG 77-494, p. 2.
When asked to determine whether a board member could change his vote on a motion raised at the previous meeting prior to approval of the minutes being sought, this office held as follows:
[W]e believe that the minutes may be amended at a subsequent meeting to conform them to the facts, but not to reflect a change in position on the matter involved in the question voted on. If through inadvertence the minutes have been inaccurately made, for example where the minutes failed to show the yeas and nays as actually voted, it is legal to correct the minutes according to the truth. It would be improper, however, to change the minutes to show something other than what had actually occurred at the previous meeting. To do this would be tantamount to falsification of records.
04-OMD-179, p. 9, citing OAG 77-494. Accord OAG 79-96; OAG 78-796; OAG 78-346. These decisions are premised upon the following notion:
While minutes may be amended to complete it so as to reflect the truth of what occurred (such as to include an actual vote count), deficiencies in the minutes cannot be corrected by an amendment which is based upon oral testimony or affidavit of an action by the board not even reflected in the minutes.
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 (1929); OAG 78-346. However, typographical or spelling errors may be corrected prior to approving draft minutes, and modifications may be made to ensure that the minutes accurately reflect the events of the meeting. 04-OMD-179, p. 10.
Assuming that any corrections made to the minutes of the meeting, either before or after the minutes were approved, did not deviate from the facts, the Fiscal Court did not violate the Act in this regard. In light of this determination, the remaining question is whether the Fiscal Court 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.
The Fiscal Court did not issue a written response upon receipt of Mr. Sheliga's complaint which, in all particulars, complied with KRS 61.846(1). The Fiscal Court has not denied receiving the complaint nor has the Fiscal Court 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.
Michael SheligaBuzz CarloftisWilliam D. Reynolds
Footnotes
Footnotes
1 Pursuant toKRS 61.835:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open for public inspection at reasonable times no later than immediately following the next meeting of the body.
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2 The issues arising under the Open Records Act will be dealt with in the decision(s) resolving Log Nos. 201000208 and 201000209.
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3 Although the Judge-Executive devoted two paragraphs of his response to purported allegations of "secret meetings," etc., none of the information provided is germane to resolution of this appeal, whereas a copy of the minutes from the meeting and the "backup record" would have been.
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