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 comply with all of the notice requirements codified at KRS 61.823(3) and (4) prior to each of the special meetings held between January 1, 2008, and May 28, 2010. Assuming the Fiscal Court did, in fact, ensure that a written notice which complied with KRS 61.823(3) was delivered "personally, transmitted by facsimile machine, or mailed" to each media organization which requested such notice per KRS 61.823(4)(a), or sent notice by electronic mail per KRS 61.823(4)(b) upon written request from any such media organizations, and it did so at least twenty-four (24) hours in advance of the special meeting (s), as Judge-Executive Buzz Carloftis asserted, it partially complied with KRS 61.823(4). Unless the Fiscal Court also notified "every member of the public agency" at least 24 hours before the special meeting (s), an issue on which the Fiscal Court was silent, both initially and on appeal, it violated KRS 61.823 to this extent. If the Fiscal Court did not also post a written notice "in a conspicuous place" in both required locations or did not do so at least 24 hours in advance, it also violated KRS 61.823(4)(c). This office is unable to reconcile the parties' conflicting factual accounts; however, the Fiscal Court has not offered any evidence to refute any of the claims, despite having two opportunities, and it unquestionably violated KRS 61.846(1) in failing to issue a timely written response upon receipt of Rockcastle County Clerk Norma Houk's complaint.
By letter directed to Mr. Carloftis on July 15, 2010, Ms. Houk submitted a complaint alleging that the Fiscal Court violated the Open Meetings Act in the following ways:
1. Members of the Fiscal Court did not receive written notice at least 24 hours prior to the meeting of the date, place and time and the agenda of the meeting.
2. News media did not receive written notice at least 24 hours prior to the meeting of the date, place and time and the agenda of the meeting.
3. Notice was not posted in a conspicuous place in the building where the meeting [was going to] take place of the date, place and time and the agenda of the meeting. This notice must be posted at least 24 hours prior to the meeting time.
According to Ms. Houk, between January 1, 2008, and May 28, 2010, "approximately forty-three (43) meetings were held" which did not comply with the Open Meetings Act. As of July 15, Ms. Houk continued, "the last minutes recorded in the Fiscal Court order book was [sic] May 28, 2010 meeting." Although the "order book" is kept in her office, Ms. Houk does not record the minutes of the Fiscal Court meetings, and therefore did "not know how many meetings have been held since May 28, 2010 that are not recorded yet in the Fiscal Court order book." As a means of remedying the alleged violations of the Act, Ms. Houk proposed that "the motions made at these meetings concerning my budgets and maximum deputy salaries be rescinded."
Having received no response to her complaint, Ms. Houk initiated this appeal by letter dated August 9, 2010, initially reiterating the allegations made therein, and further advising that "[u]sually the Fiscal Court Clerk telephoned the local newspaper a few hours before the meeting," and "there was no notice posted at any time." Rather, these meetings "were held without the public being aware or having any knowledge of them until the meetings had already taken place." Specifically, Ms. Houk apparently learned of the March 12 meeting on March 15, when the Fiscal Court Clerk brought her a copy of her budget. When Ms. Houk indicated that someone had changed the numbers, the Fiscal Court Clerk informed her that her budget "had been changed at a meeting on the previous Friday." Ms. Houk believes the "43 plus meetings are illegal" and notes that she did not receive a response to her complaint.
Upon receiving notification of Ms. Houk's appeal from this office, Mr. Carloftis responded on behalf of the Fiscal Court, advising, in relevant part, that he has been the County Judge-Executive since being appointed in 1993, and has "never - not a single time - had a special meeting without notifying the newspaper a day in advance. The local newspaper has failed only one or two times to have a representative at a court meeting." Mr. Carloftis disputed Ms. Houk's assertion regarding minutes of the Fiscal Court meetings, indicating that "[a]ll minutes of the [C]ourt's meetings are recorded by the [C]ounty [C]lerk and are on the public record for public access." According to Mr. Carloftis, the reason that minutes from the May 28 meeting had not been recorded is "that they had not been approved by the magistrates. All minutes have now been approved by the [F]iscal [C]ourt and are on file in the [C]lerk's office (with the exception of the last meeting, which has not yet been approved)." Mr. Carloftis also correctly observed that minutes of the Fiscal Court do not become a "permanent, official record" until "approved by the body at a subsequent meeting." 1 In rejecting the proposed remedy, Mr. Carloftis noted that "state law and recent circuit court findings place the fiscal operations and subsequent management of county government" solely within the "parameters of the fiscal courts in Kentucky."
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. In applying this provision, the Kentucky Supreme Court has recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," and the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions."
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997), citing
E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990). In Scripps, the Kentucky Court of Appeals likewise 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. " Id. at 452. As the foregoing authorities illustrate, "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 A.2d 563, 564 (N.J. Super. Ch. 1982).
To promote this goal, the Open Meetings Act establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. Specifically, KRS 61.823(1) provides that "[e]xcept as provided in subsection (5) of this subsection [which is inapplicable], special meetings shall be held in accordance with the provisions of subsections (2)[the presiding officer or a majority of the members may call a special meeting] , (3), and (4) of this section." In filing her complaint/appeal, Ms. Houk implicitly relied upon KRS 61.823(3), and (4), 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. . . .
(b) A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic 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 written request shall include the electronic mail address or addresses of the agency member or media organization.
(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.
(Emphasis added.)
"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, 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). Verbal notification by telephone or in person is not sufficient. 03-ORD-197; 04-OMD-184. 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. Public agencies must comply with all of these requirements.
Ms. Houk claims that neither the press nor the members of the Fiscal Court received proper written notice at least 24 hours in advance of each special meeting; likewise, Ms. Houk claims that a proper written notice was not posted in a conspicuous place in the meeting place as well as the headquarters of the Fiscal Court (if not one and the same) at least 24 hours in advance. The record is devoid of evidence to refute any of these allegations. Ms. Houk finds herself in the unenviable position of trying to prove a negative. She could not, for instance, be expected to provide a copy of a nonexistent notice or any kind of documentary proof that a proper notice was delivered in a timely fashion to substantiate her claims. Mr. Carloftis emphatically disputed her assertion regarding the provision of proper notice to the media; however, even assuming that the Fiscal Court consistently provided timely and proper notice to members of the media, the Fiscal Court failed to even address whether the members also received a timely and proper notice in each instance. The Fiscal Court was also silent as to whether it complied with KRS 61.823(4)(c), despite the fact that it was in a much better position to provide objective, documentary proof 2 in the form of a copy of the written notice sent to the media and the members and posted for the public in a conspicuous place, for example, and/or copies of any fax confirmations, e-mails, or mail logs, etc. depending on which method of delivery was utilized each time. In sum, the Fiscal Court ignored Ms. Houk's complaint, did not even attempt to address her specific allegations in responding to her appeal, with the exception of the first one, and it offered no evidence of any kind to refute Ms. Houk's allegations notwithstanding its obligation to create and maintain such records, at least some of which still exist unless they were destroyed prematurely. The Attorney General is unable to rule in favor of the agency under these circumstances.
In addition to these apparent violations of KRS 61.823, the Fiscal Court unquestionably 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 the record establishes, the Fiscal Court did not respond upon receipt of Ms. Houk'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, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029, p. 4. This holding applies with equal force to parallel requirements of the Open Meetings Act. Because the Fiscal Court failed to provide any response to Ms. Houk's complaint, in violation of KRS 61.846(1), only chose to address one of the allegations in responding to her appeal from this inaction, and failed to provide any proof, this office must conclude that it violated the Open Meetings Act insofar as it did not comply with all of the notice requirements codified at KRS 61.823(3) and (4) prior to any of the special meetings held between January 1, 2008, to May 28, 2010.
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.
Norma HoukBuzz CarloftisWilliam D. Reynolds
Footnotes
Footnotes
1 In relevant part, KRS 61.835 provides that minutes of public agencies must be "open for inspection at reasonable times no later than immediately following the next meeting of the body." Although a public agency may waive the available exception and release unapproved minutes, it is not required to do so. The Attorney General has long recognized that "unapproved minutes of [public] meetings may properly be withheld as preliminary records." See, e.g., 96-ORD-21. Such minutes are in the nature of a preliminary draft and thus are not subject to public inspection pursuant to KRS 61.878(1)(i) until approved at the next meeting of the body. 09-ORD-206, p. 4.
2 A review of the Local Agency Records Retention Schedule reveals that Record Series L4966 is "used to document the time and place of meetings and the agendas for those meetings. This series may include the time, date, [and] place of [a] meeting and the subjects to be covered." Record Series L4953 "is used to document that those members and other interested parties have been notified and sent what items would be addressed at a meeting of the legislative body" and "may include the date and time and the subjects to be addressed." The retention period for both of these series is one year; accordingly, the Fiscal Court presumably had such records, at least for meetings dating back to a year prior to Ms. Houk's July 15, 2010, complaint, even if the records predating July 15, 2009, were properly destroyed in the normal course of business, assuming they were created to begin with in compliance with provisions of the Open Meetings Act.