10-OMD-143 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Meetings Decision

At issue in this appeal is whether the City of Berea Board of Adjustment violated the Kentucky Open Meetings Act violated KRS 61.835 in failing to keep "official minutes, and records" of its January 27, 2010, meeting, and violated KRS 61.820 in failing to "provide a schedule of regular meeting dates" from January 1-December 31, 2010. Because the Board of Adjustment has not held another meeting since January 27, and the minutes from that meeting have consequently not been approved yet, but John R. Guthrie, the complainant, has been provided with a draft copy of the minutes, the Attorney General has no basis upon which to find a violation of KRS 61.835. Inasmuch as the Board of Adjustment is not statutorily required to meet on a regular basis under KRS 100.221(1), which imposes more stringent notice requirements than KRS 61.823 in that respect, and is therefore consistent with the Open Meetings Act, no violation of KRS 61.820 can be said to have occurred.

In the June 21, 2010, complaint which Mr. Guthrie submitted to Board Chairman Paul E. Dean, he raised various other issues which are not justiciable in the context of an Open Meetings Appeal. See 10-OMD-120 (In re: John R. Guthrie/City of Berea). To remedy all of the alleged violations, Mr. Guthrie proposed that the Board "vacate the January 27, 2010, decision" and that "all the board members that were present . . . resign, 'as trier of fact,' wherein a new board could find the facts . . . and make a decision, that is just and fair." 1 Upon receiving notification of Mr. Guthrie's appeal from this office, James T. Gilbert, "corporation counsel" for the City of Berea, responded to each of the three arguments Mr. Guthrie raised in his appeal on behalf of the agency.

In relevant part, Mr. Gilbert argued:

First, Mr. Guthrie asserts a "failure to keep records and Minutes, during the meeting [of the Board of Adjustment on January 27, 2010], is a violation of the Mandates of KRS 100.221(3)."

KRS 100.221(3) provides in relevant part [that] "[a]ll boards of adjustment shall adopt bylaws for the transaction of business and shall keep minutes and records of all proceedings, including regulations, transactions, findings, and determinations, and the number of votes for and against each question...." 2 . . . [Mr. Guthrie's] "Open Meetings" complaint is premised on KRS 61.835, which provides that "[t]he minutes of action taken at every meeting of any such public agency, setting forth an accurate record of the votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of such body."

The minutes from the January 27th meeting have been provided to Mr. Guthrie. Pursuant to KRS 100.221(1) the Berea Board of Adjustment conducts meetings as-needed on the call of the chairman and upon seven days notice. There has been no meeting of the [B]oard since January 27th, so the minutes have not yet been approved. A copy of the minutes prepared, which will be submitted for approval at the next meeting of the [B]oard, is attached.

There is no basis for his complaint regarding the minutes.

The second complaint in the appeal is the alleged "failure to provide a schedule of regular meetings, for the public's inspection," referencing KRS 61.860. Since KRS 61.860 does not exist, it is presumed that the reference is intended to be KRS 61.820, which requires that "[a]ll meetings of public agencies . . . shall be held at specified times and places . . ., and all public agencies shall provide a schedule of regular meetings....The schedule of regular meetings shall be made available to the public."

Pursuant to KRS 100.221(1), [footnote omitted] the [B]oard of [A]djustment does not meet on a regular schedule, but rather as the needs of business dictate. The meetings are held pursuant to the statute, and are advertised pursuant to KRS 424.130.

There is no basis for the complaint regarding the schedule of regular meetings, since the [B]oard is in compliance with the specific statute establishing the duties and authority of the [B]oard.

Mr. Guthrie's final complaint is the alleged "failure to immediately record records and Official Minutes, to be open to public inspection at a reasonable time[. . .,]" referencing KRS 61.835.

The response to this complaint is the same as the first complaint. There has been no subsequent meeting of the [B]oard of [A]djustment. The draft minutes have been provided to Mr. Guthrie. He has all that the [C]ity has. There is complete compliance with the statutory requirements.

(Emphasis added.)

Based upon the following, this office agrees that with the exception of not issuing a timely written response to Mr. Guthrie's complaint, which constituted a violation of KRS 61.846(1), the Board of Adjustment did not violate the provisions of the Open Meetings Act. With regard to Mr. Guthrie's proposed remedies, Mr. Gilbert correctly asserted that the "Attorney General is without legal authority to order the Berea Board of Adjustment to rehear the issues, much less to require recusal of all sitting board members." Our analysis therefore focuses exclusively on whether the Board complied with KRS 61.835 and 61.820.

As in 10-OMD-120, the decision resolving Mr. Guthrie's other appeal regarding the Board's January 27, 2010, meeting, this office reiterates that the Attorney General is "'not empowered to adjudicate a dispute relating to interpretation of, and compliant with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.],'" in this context. Id., p. 2 (citation omitted). KRS 61.835, the relevant provision of the Open Meetings Act, requires public agencies to record "[t]he minutes of action taken at every meeting . . . setting forth an accurate record of the votes and actions at such meetings," and to promptly record the minutes, which "shall be open to public inspection at reasonable times no later than immediately following the next meeting of such body. " (Emphasis added.) The italicized language is controlling here. Mr. Gilbert has confirmed that no meeting has been held since January 27, and KRS 100.221(1), discussed in more detail relative to KRS 61.820 later, validates that the Board meets only as needed. Although public agencies may waive the applicable statutory exception to the Open Records Act, KRS 61.878(1)(i), as the Board apparently did, the Attorney General has long recognized that unapproved minutes of public meetings may be properly withheld as preliminary records. See, e.g., 96-ORD-21; 07-OMD-094. Such minutes are in the nature of a preliminary draft and thus exempt from public inspection pursuant to KRS 61.878(1)(i) until approved. 3 Accordingly, it stands to reason that the Board cannot be found in violation of KRS 61.835 for voluntarily providing Mr. Guthrie with a draft copy of the minutes inasmuch as that is the only version currently in existence, and the Board is not statutorily required to approve the minutes and make an official version "open to public inspection" until "immediately following" its next meeting.

In light of this determination, the remaining question is whether the Board violated KRS 61.820 in failing to provide Mr. Guthrie with a schedule of regular meetings. In 10-OMD-120, this office found that as in 03-OMD-021, the agency whose actions were at issue "'has not substantiated that it has adopted a schedule of regular meetings and made it available to the public," and "thus it failed to demonstrate that [it acted] in compliance with the requirements of KRS 61.820.'" 10-OMD-120, p. 3, quoting 03-OMD-021, p. 4. Although Mr. Guthrie's complaint "failed to state circumstances which constituted an alleged violation of the Open Meetings Act per KRS 61.846(1)," the City "violated the Open Records Act, specifically KRS 61.880(1), in failing to issue a written response to Mr. Guthrie's April 29 request for a copy of the Board of Adjustment's 2010 schedule of regular meetings, which must be made available per KRS 61.820." 10-OMD-120, p. 4. However, in addressing this part of Mr. Guthrie's current appeal, Mr. Gilbert explained that pursuant to KRS 100.221(1) "the [B]oard of [A]djustment does not meet on a regular schedule, but rather as the needs of business dictate. The meetings are held pursuant to the statute, and are advertised pursuant to KRS 424.130."

In 99-OMD-166, this office was asked to determine whether the City of Benton Park Board's failure to establish a schedule of regular meetings constituted a violation of KRS 61.820. Having quoted the language of KRS 61.820, the Attorney General reasoned as follows:

We are unable to locate any legal authority addressing this issue, and acknowledge that the language of the statute is subject to conflicting interpretations. One of these interpretations comports with the Muellers' [Mr. Guthrie's] view that the Board must conduct regular meetings, and establish a schedule of those meetings which is made available to the public. In our view, however, the phrase "or by whatever other means may be required for the conduct of business of that public agency" invests the Board with some latitude in determining whether to meet on a regular or as needed basis. In the latter case, the Board must treat all of its meetings as special meetings and scrupulously comply with the notice requirements set forth at KRS 61.823. This, again, would promote the express purpose for which the Open Meetings Law was enacted, namely, to maximize notice of public meetings, in the same manner as a regular schedule of meetings, and at the same time eliminate the needless expenditure of public resources for unnecessary meetings. Moreover, it reflects the simply reality that some public agencies do not conduct the public's business on a sufficiently regular basis to justify regular meetings.

While we continue to ascribe to the view that the Open Meetings Act contemplates that public agencies will establish a regular me[e]ting schedule "by ordinance, order, resolution, [or] bylaw [s]," and that this method of conducting meetings is clearly favored, we conclude that the Park Board's failure to do so does not violate the Open Meetings Law so long as the Board strictly complies with the requirements of KRS 61.823, treating all of its meetings as special meetings.

99-OMD-166, pp. 5-6. 4

The instant appeal presents no basis for departing from this precedent. To the contrary, the specific language of KRS 100.221(1), as indicated above, removes any doubt as to whether boards of adjustment are required to have a schedule of regular meetings. A review of KRS 100.221(1) 5 validates the Board's position that it does not meet according to a regular schedule nor must it do so; rather, the Board must only conduct meetings "at the call of the chairman, " or as needed, in other words. In sum, the Attorney General has no basis upon which to find that a violation of KRS 61.820 occurred as the Board cannot be faulted for failing to produce a schedule of regular meetings which it was not statutorily required to create.

Significantly, KRS 100.221(1) is consistent with the Open Meetings Act, and KRS 61.823(3) in particular, to the extent it requires that a written notice containing the date, time, and place of the meeting, as well as the subject for discussion (agenda), be provided to all members of the Board. In fact, KRS 100.221(1) imposes a higher standard than KRS 61.823(4) in terms of the amount of notice that must be given, requiring 7 days of notice rather than twenty-four (24) hours. However, KRS 61.823(4) requires that 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 . . ." and does not permit "oral notice" to members of the Board. Since July 15, 2008, subsection (b) has authorized public agencies to satisfy the requirements of KRS 61.823(4)(a) by "transmitting the written notice by electronic mail . . ." Finally, KRS 61.823(4)(c) requires all public agencies to post such a notice "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." To the extent KRS 100.221(1) (or KRS 424.130) imposes a lesser standard with regard to notice of meetings, the Board must also comply with KRS 61.823, the relevant provision of the Open Meetings Act, in order to provide sufficient notice per 99-OMD-166. See 01-OMD-154.

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.

John R. GuthrieJames T. GilbertPaul E. Dean

Footnotes

Footnotes

1 By way of background, Mr. Gilbert explained that in June 2008 the Berea Code Enforcement Board "held a hearing on a complaint made by Mr. Guthrie" against his next door neighbor, Sarah Riley, alleging that she had a fence in her yard which violated the Land Management and Development Code. Following a hearing, the Code Enforcement Board entered a Final Order on June 23, 2008, determining that Ms. Riley was in violation of § 408(e) of the Code and ordering her to bring her property into compliance within sixty (60) days. Ms. Riley had modifications performed on her fence and said that she was in compliance. Mr. Guthrie disagreed and complained to the Code Enforcement Office which investigated and concluded that she was in compliance.

Mr. Guthrie then appealed the inaction of the Code Enforcement Office to the Board of Adjustment. A hearing was held on January 27, 2010, and the Board of Adjustment denied his appeal. Mr. Guthrie then filed a "Notice of Appeal" with the Code Enforcement Board, and was provided with a written notice advising him that no legal authority existed for such "Appeal." His remedy was to appeal from the Board of Adjustment's determination to Madison Circuit Court per KRS 100.347; however, Mr. Guthrie failed to appeal within thirty (30) days.