Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Nelson County Fiscal Court violated the Kentucky Open Meetings Act in failing to post a written notice of the special meeting scheduled for April 27, 2010, in a conspicuous place in the building where the Fiscal Court was going to meet and in a conspicuous place in the building which houses the headquarters of the Fiscal Court at least twenty-four (24) hours before the special meeting. Given the conflicting evidence presented, this office is unable to conclusively determine that a violation occurred; however, to the extent the Fiscal Court failed to post a written notice in both of those places, assuming they are not one and the same, 1 or failed to post said notice at least 24 hours in advance of the meeting, it violated KRS 61.823(4)(c). Although the Fiscal Court could undoubtedly have chosen a more conspicuous place for the notice to be posted, and the question is a close one, this office cannot declare that the bulletin board inside of the Fiscal Court meeting room ("Community Room") in the "Old" Courthouse was not a conspicuous place in the absence of any evidence "of an attempt to conceal" the notice. 03-OMD-250, p. 5.
By letter directed to County Judge/Executive Dean Watts on April 27, 2010, Kevin Brumley submitted a complaint alleging that as of April 26, 2010, the Fiscal Court had not posted any "notice or agenda on any of the doors or bulletin boards, at 1:46 p.m.," regarding the special meeting scheduled for April 27, 2010, at 9:00 a.m., including in the "Fiscal Court meeting room. " According to Mr. Brumley, the Fiscal Court held a special meeting on April 27 "without having properly posted the notice and agenda, as required by KRS 61.823(4)(c), in a conspicuous place for a minimum of 24 hours." Mr. Brumley noted that when he confronted Judge Watts at the conclusion of the meeting, he said that he "posted the notice and agenda and said that they had been posted for '3 or 4 days,' and verbally told, [sic] and pointed where one of the notices was 'conspicuously posted. '" Contrary to Judge Watts' assertion, Mr. Brumley said there was "ample proof that indeed the notice and agenda were NOT posted until sometime AFTER 1:49 [p.m.] on April 26[,] 2010." (Original emphasis.) Mr. Brumley filmed his "uneventful trip" through the courthouse on April 26. To remedy the violation of the Open Meetings Act, Mr. Brumley proposed, among other things, that Judge Watts "declare the special meeting of 4-27-2010 NULL and VOID," and that he "reschedule the special meeting and properly follow all the requirements" for holding a special meeting under KRS 61.823. (Original emphasis.)
In a timely written response, Judge Watts advised Mr. Brumley that he "posted the notice to the special meeting on Friday, April 23, 2010 on the bulletin board in the Court room. I have a witness." Judge Watts indicated that the notice was "posted by use of a stick pin, and perhaps someone took it down to shoot a picture!" In closing, Judge Watts noted that he is aware of the posting requirement for special meetings and has "always tried to comply." By letter dated June 24, Mr. Brumley initiated this appeal, noting that "absolutely nothing" appeared in the April 21, 23, or 25 issues of The Kentucky Standard with regard to the April 27 special meeting after Judge Watts announced it during the regular meeting held on April 20. On April 27, 2010, at 8:57 a.m. Mr. Brumley "returned to the Fiscal Court [] room to attend this special meeting, and miraculously [found] two copies of the agenda, one posted downstairs and one posted upstairs in the Fiscal Court [] room, that were NOT there on April 26th at 1:49 p.m.!" Mr. Brumley asserted that his video recording (made on April 26, 2010, at 1:49 p.m.), a copy of which Mr. Brumley enclosed with his appeal, shows "that the two notices and agenda [s] found on the bulletin boards at 8:57 [a.m.] on April 27, 2010, were posted AFTER [he] was seen videoing the [C]ourthouse and fiscal court room and after [he] left the Courthouse, and less than the 24 hours required to give notice to the public."
Upon receiving notification of Mr. Brumley's appeal from this office, Judge Watts merely reiterated that he posted the notice for the special meeting "on Friday, April 23, 2010, on the bulletin board in the Fiscal Court room. I have a witness that will testify that this was done. Further, I will testify under oath that I posted the notice. " Judge Watts emphasized that he "knew about the posting requirement and satisfied the statute." In reply, Mr. Brumley noted that this "unlighted meeting room" is "basically off limits to the general public when there are no meetings taking place." Even if the notice was initially posted as Judge Watts indicated, Mr. Brumley argued, and then removed temporarily to revise the agenda but was not back in place when he was filming, "it still doesn't explain the mysteriously [sic] appearance" of the notice downstairs on April 27 "that nobody acknowledges any involvement in posting! " Attached to Mr. Brumley's July 1, 2010, letter was a copy of his affidavit stating that he did not "remove anything from the walls or bulletin boards of the Nelson County Courthouse prior to making the video" on April 26, 2010, nor did he contact anybody to remove any official notifications, etc. Mr. Brumley also stated that the "digital video submitted as an exhibit in this appeal, has not been altered in any way, and truly depicts the actual events of April 26, 2010." Like Judge Watts, Mr. Brumley asserted that he "has a witness" but will not divulge the name though he is willing to "take a polygraph test."
As the Attorney General has consistently recognized, the role of this office in adjudicating a dispute arising under the Open Meetings Act is narrowly defined by KRS 61.846(2), pursuant to which the Attorney General "shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850"; nothing more, nothing less. (Emphasis added.) "Such decisions involve the application and interpretation of the requirements of the Open Meetings Act, and are in the nature of questions of law." 00-OMD-142, p. 6. As with appeals arising under the Open Records Act, this office is not empowered to resolve disputes of a factual nature in the context of an Open Meetings appeal; our review is confined to the written record. See 05-OMD-188; 00-OMD-142; 00-OMD-96. This office has no basis to question Mr. Brumley's veracity, but is nevertheless unable to sufficiently evaluate the authenticity of evidence such as the digital recording that he made on April 26 or the photograph that he took on April 27, both of which he relied on to support his allegations. 05-OMD-188, p. 9. In sum, the Attorney General does not conduct hearings, gather evidence, conduct witness interviews, etc. in resolving disputes arising under the Open Meetings Act; only the courts are vested with authority to perform such functions.
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 (emphasis added); 02-OMD-11. Significantly, 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, 790 S.W.2d 450, 452 (Ky. App. 1990). Echoing this view, the Kentucky Supreme Court has confirmed:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997), citing E. W. Scripps Co., above. "Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to 'open government openly arrived at.'" 99-OMD-146, p. 4, citing Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N. J. Super. Ch. 1982).
To promote this goal, the Open Meetings Law establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. In relevant part, KRS 61.823 provides:
(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. . . .
. . .
(c) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
"The language of the statute directing agency action is exact." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, 2 at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed ...," or sent via electronic mail per KRS 61.823(4)(b). In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. Resolution of this appeal turns on the posting requirements codified at KRS 61.823(4)(c).
Mr. Brumley's complaint, as indicated, is that Judge Watts violated KRS 61.823(4)(c) in failing to post a written notice in a conspicuous place (s) and to post it at least 24 hours before the special meeting held on April 27, 2010. As of April 26, 2010, he emphatically asserted repeatedly, there was not any "notice or agenda on any of the doors or bulletin boards, at 1:46 p.m." regarding the special meeting scheduled for 9:00 a.m. the following day, or less than 24 hours later. Judge Watts disputed this contention, adamantly claiming in response to both Mr. Brumley's complaint and his appeal that he "posted the notice to the special meeting on Friday, April 23, 2010 on the bulletin board in the Court room." As previously indicated, this office is unable to conclusively resolve this factual dispute. To the extent the Fiscal Court did not post a notice at least 24 hours before 9:00 a.m. on April 27, it violated the mandatory language of KRS 61.823(4)(c). Even if the Fiscal Court posted a notice (s) that morning, it would not have remedied such an error.
With regard to whether the notice was posted in a conspicuous place, this office finds guidance in 03-OMD-250. In that appeal, the complainant maintained that the Nortonville City Council violated KRS 61.823(4)(c) (then codified as (b)) in failing to post a notice of a special meeting on the door of the building where the meeting was held as well as the door of the building which housed the agency's headquarters (one and the same in that case), to ensure that the notice was accessible to the public for the 24 hours preceding the meeting. The complainant proposed that the City Council "'post the notices out on the front door that houses [sic] the city offices including where the City Council meets . . . [so that] when the doors are locked at 4 pm in the evening, people can still see the notice. '" Id., p. 1. The City Council rejected the assertion that the only conspicuous place to post the written notice was on one or more of the outside doors of City Hall, noting that no authority was cited for that proposition. In that case, it was "an established practice to post all notices on the bulletin board in the main office of the city building" which served as "'the primary location for members of the general public to transact business with the City.'" Id., p. 5. While there were, "no doubt, more conspicuous places where notice of [a] special meeting of the City Council might [have been] posted, " this office ruled in favor of the agency because the practice of posting notices on a public bulletin board was consistent with the statutory requirement. Id.
This appeal presents a closer question as no evidence of such an "established practice" has been presented here and the bulletin board on which the written notice was posted is apparently located inside of the Fiscal Court meeting room, which is dark unless a meeting is being conducted, as opposed to being located in a more visible and/or accessible room such as the "main office of the city building" deemed sufficiently "conspicuous" in 03-OMD-250. In reaching that conclusion, the Attorney General reasoned as follows:
The Kentucky General Assembly has not particularized a place on which notice of special meetings must be posted, and, absent proof of an attempt to conceal such notices, we believe that discretion rests with the public agency to determine what constitutes a conspicuous place. 3 The term "conspicuous" is variously defined as "obvious" "attracting attention," "noticeable," The American Heritage Dictionary 187 (3d ed. 1994) and "easy to see or perceive," and "attracting attention . . . ." Webster's New World Dictionary 304 (2d ed. 1974). A bulletin board located in that area of City Hall set aside for the transaction of public business satisfies these definitions. Accord, 00-OMD-142 (posting of written notice of special meeting on public bulletin board at city hall "complied in all particulars with the requirements found at KRS 61.823 . . . .").
Until such time as the General Assembly declares that special meeting notices must be posted on the doors of the buildings in which special meetings will be held and the buildings that house the agencies' headquarters, reasonable discretion must be said to reside with public agencies in making this determination. A bulletin board that is accessible to the public is "conspicuous, " as that term is commonly interpreted, 4 notwithstanding the fact that more conspicuous places may be available or the fact that it may not be conspicuous to the public for the full twenty-four hours preceding the special meeting. As noted above, absent evidence of an intent to conceal the special meeting notice in contravention of KRS 61.823[(4)(c)], we find no error in the City Council's decision to post its special meeting notice on the public bulletin board located in City Hall.
03-OMD-250, pp. 5-6. This reasoning is controlling on the facts presented.
Although the bulletin board of the Fiscal Court meeting room was definitely not the most conspicuous place for posting the notice in dispute, and this office questions why the Fiscal Court did not also post a notice, for example, on the front door of the Courthouse or at least a more publicly visible bulletin board, in the absence of any proof "of an attempt to conceal" the notice or a statutory requirement that notices must be posted in a particular location to comply with KRS 61.823(4)(c), this office does not find that a violation occurred. To the extent the Fiscal Court failed to post a written notice at least 24 hours prior to holding the special meeting at 9:00 a.m. on April 27, or by 9:00 a.m. on April 26, in other words, it failed to comply with KRS 61.823(4)(c).
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.
Kevin BrumleyDean WattsJohn S. Kelley, Jr.
Footnotes
Footnotes
1 The record is unclear as to whether the Nelson County Courthouse is the "headquarters" of the agency in addition to being where it apparently holds all of its meetings. If not, the Fiscal Court erred in failing to post a notice in both locations.
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2 Although Mr. Brumley emphasized that none of the issues of The Kentucky Standard, the "tri-weekly paper," contained a notice of the special meeting, and he submitted a copy of each newspaper as verification, the record on appeal is devoid of evidence confirming that the newspaper "filed a written request" to receive notice per KRS 61.823(4)(a) or (b). More importantly, the Act does not require a media organization to publish a notice upon receipt.
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3 With regard to the requirement that agencies adopt rules and regulations governing access to public records, KRS 61.876(2) provides that such rules and regulations "shall be displayed . . . in a prominent location accessible to the public," but does not specify a particular location.
4 In matters of statutory construction, words must be "construed according to the common and approved usage of language." KRS 446.080(4).
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