Opinion
Opinion By: Jack Conway, Attorney General; Tad Thomas, Assistant Deputy Attorney General
Open Meetings Decision
At issue in this appeal is whether the Hardin County Board of Education's "practice of holding official meetings at various district schools at 11:30 a.m. on the same day the Board conducts its regular monthly meeting" at 6:00 p.m. violates the Kentucky Open Meetings Act. While 11:30 a.m. on a weekday is, according to William Woolridge, President of the Hardin County Education Association and the complainant here, not a convenient time for many of those most affected to attend such meetings, and this appeal presents a close question, the Attorney General is not prepared to declare that said time violates the letter of KRS 61.820 when viewed in light of Knox County v. Hammons, 129 S.W.2d 839 (Ky. 2004). In failing to issue a written response within three business days of receiving Mr. Woolridge's July 16, 2010, complaint, the Board violated KRS 61.846(1).
By letter directed to Kay Sharon, Board Chairperson, on July 16, Mr. Woolridge advised that he and the Association "have continuing concerns" regarding the aforementioned practice, which does not "comply with KRS 61.820 or KRS 61.840." It was Mr. Woolridge's understanding "that the intent of the board members meeting at our district schools was to have lunch and tour the facilities." However, "these site visits," Mr. Woolridge observed, "have evolved into monthly morning meetings that occur before the regular board meeting convenes at 6:00 p.m." Mr. Woolridge noted that Ms. Sharon advised him in September 2009 "that the topics to be discussed at the lunchtime meetings 'are for clarification and discussion only. Decisions will not be made at these meetings.'" However, Mr. Woolridge remained of the belief "that the morning meetings violate the Open Meetings Act. " Mr. Woolridge quoted the language of KRS 61.820, 61.840, and 61.810(1) in support of his position.
Mr. Woolridge noted that he "seldom miss[es] an evening board meeting. " However, the duties of his employment prevent him, "and almost all of the Board's other employees, parents, as well as many Hardin County citizens from observing and participating in the Board's morning meetings at the various individual schools." In sum, the practice of using the morning meetings "as a work session for the Board members deprives the Board's employees and Hardin County residents of meaningful participation in the Board's decision making process." His "observation and belief" is that the Board "discusses important public issues and reaches agreements on these issues at the morning meetings. Action is then taken at the regular 6:00 p.m. meeting based on these earlier agreements without additional, substantive public discussion or debate." Mr. Woolridge has "heard the Board members refer at the evening meetings to the discussions and agreements that were made in the morning meeting that preceded the Board's formal action in the evening. " This practice, Mr. Woolridge asserted, "unnecessarily limits public observation and discussion of school board issues before the Board takes final action." As a means of remedying the alleged violation, Mr. Woolridge proposed that the Board "cease the practice of holding school board meetings and discussing school issues during the hours of the day when most school board employees and Hardin County parents are unable to attend and observe. "
By letter dated July 23, Superintendent Nanette Johnston confirmed that Ms. Sharon received Mr. Woolridge's complaint on July 21, but advised Mr. Woolridge that she had forwarded his complaint to the Board's attorney "for review" and that he would "receive a response . . . as soon as possible." On August 5, 2010, Ms. Sharon issued a final response on behalf of the Board, initially advising that the "lunchtime meetings" are held at designated schools "and follow the guidelines outlined in the Open Meetings Act. " According to Ms. Sharon, the "goals" of the 11:30 meetings remain:
. To visit the schools and tour the facilities
. To make a personal connection with staff and students
. To learn more about the district programs and services
. To ask clarifying questions about the board agenda to include minimizing the amount of time spent on construction and change order clarification during the evening meeting.
Ms. Sharon observed that "an additional stipulation that will continue to be honored at the lunchtime meetings is that topics are for clarification and discussion only. Decisions will not be made at these meetings." 1
According to Ms. Sharon, the Board's attorney saw "no reason why the Board cannot continue to conduct the 11:30 regular meeting [s]" based on Hammons, above. In closing, Ms. Sharon advised that the Board's practice "has been and will continue to be complete openness and thorough discussions leading to educated decisions that are in the best interest of students and staff." Accordingly, the Board will continue to hold meetings at which "visitors are recognized to speak as well as public forums that encourage community ideas and discussion" in the evenings while meetings "which include the goals stated above will continue to be held at lunchtime on board meeting days."
By letter dated August 19, 2010, Dennis F. Janes, Kentucky Education Association, Office of Legal Services, initiated this appeal on behalf of Mr. Woolridge, his client, who is a teacher "employed by the [Board] and the president of the Hardin County Education Association." 2 Mr. Janes argued that the result of "bifurcating the school board meetings is that most individuals cannot witness both the school board's discussions and its vote on the public issues that come before the board." In other words, most employees of the Hardin County School District and other citizens cannot "observe and participate in the Board's investigation, discussion, and clarification of public school issues" and "have to choose between participation in one or the other step of the board's two-step decision making procedure. Very few get to see the full picture." Mr. Janes further contended that Hammons is factually distinguishable from this case as the public had access in Hammons, though inconvenient, to the second meeting at which the Fiscal Court discussed and enacted the ordinance. In contrast, Mr. Janes observed, the Board's "two-step procedure effectively renders full public knowledge of and participation in the decision making procedure impossible." 3 Lastly, Mr. Janes correctly asserted that Mr. Woolridge's July 16 complaint was delivered on July 21; however, the Board's final response was dated August 5, and therefore was not a "timely and proper response" per KRS 61.846(1).
Upon receiving notification of Mr. Janes' appeal, David T. Wilson II, counsel for the Board, responded on behalf of his client. Quoting Hammons, Mr. Wilson argued that "it appears relatively self-evident that the objection to holding meetings at 11:30 in the morning is without merit in light of the Kentucky Supreme Court's interpretation of the applicable statutory scheme." In his view, by arguing on appeal that bifurcation of the discussion and final action phases of the Board's decision making procedure is prohibited, the allegation to which Mr. Woolridge only alluded in his complaint, Mr. Woolridge "changed his tact" and "now seems to concede that morning meetings are acceptable." Mr. Wilson emphasized that Mr. Woolridge "offers no legal authority for the proposition that the Board is somehow prohibited from discussing an item in one meeting and taking action at a later meeting." To the contrary, Mr. Wilson observed, KRS 61.810(1) requires only that all meetings of a quorum "at which public business is discussed or at which any action is taken by the agency shall be open to the public at all times in the absence of an exception. The 11:30 a.m. meetings are open to the public. The 6:00 meetings are open to the public." Mr. Wilson noted in closing that there is "no prohibition" against the Board discussing a topic at the 11:30 meeting and taking action during the 6:00 meeting.
Both Hammons and prior decisions of this office weigh in the Board's favor as to whether such a time is "convenient" within the limited scope of that provision. Insofar as the instant appeal involves a practice by a public agency, of discussing public business 4 on a monthly basis prior to holding a second regular meeting later the same day, rather than a special meeting held for unavoidable reasons or an otherwise random or isolated occurrence, this appeal is unique; however, this office is unable to conclude that holding regular meetings at 11:30 a.m. on Thursday violates KRS 61.820 in light of governing precedents.
In relevant part, KRS 61.820 provides that "[a]ll meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public." The Open Meetings Act imposes a corollary duty on public agencies at KRS 61.840 by requiring that "all agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings." Resolution of the instant appeal turns on the former provision. 5 In construing KRS 61.820, the Attorney General has observed:
The phrase "convenient to the public" is not defined or explained anywhere in the Open Meetings Act. It is obvious that the public agency has some flexibility and discretion in determining what is a convenient day and time. It is equally obvious . . . that no matter what day and time are selected . . . those decisions will meet with less than full and complete approval . . . ."
96-OMD-264, p 2. Complainants have unsuccessfully challenged meetings held at 9:00 a.m. (93-OMD-20); at 5:00 p.m. (96-OMD-264); late in the evening (92-OMD-1728); and during the school day (95-OMD-106). See 98-OMD-74. These decisions confirm that no time is convenient to each and every member of the public. Because no single day and time will meet with "universal approval," the Attorney General has given public agencies considerable latitude in scheduling their meetings. 98-OMD-74, p. 4.
More recently, the Kentucky Supreme Court articulated the standard for making this determination. In Hammons, the taxpayer appellees claimed that Knox County had violated the Open Meetings Act in passing an occupational tax ordinance and sought to have the ordinance declared void. Id. at 844. More specifically, the taxpayers argued that Knox County had passed the ordinance in violation of KRS 61.820 and KRS 61.840 by scheduling the special meeting of the Knox County Fiscal Court at which the ordinance was passed during the Daniel Boone Festival. Id. According to the taxpayers, Knox County did not conduct the meeting at a time or in a location that was "convenient to the public," and, therefore, the ordinance was invalid. Id. As the Court observed:
There is no doubt that the Daniel Boone Festival is a major event in Knox County attracting large crowds, and that the area surrounding the Knox County Courthouse is extremely congested during the festival week. The record reflects that available parking near the courthouse during the festival is virtually non-existent, and that it is inconvenient to maneuver through the festival area to reach the courthouse. Furthermore, the Appellees also claim that the special meeting violated KRS 61.840 because it did not allow "effective public observation" of the proceedings. It is undisputed that numerous citizens were not able to enter the crowded district courtroom and observed the proceedings from the hallway.
Id. When viewed in context, such conditions did not constitute a violation of KRS 61.820 or KRS 61.840 in the Court's view.
Agreeing with both the trial court and the Court of Appeals, the Supreme Court found "that the Knox County Fiscal Court could have chosen a more convenient time for the special meeting, one that did not coincide with a busy county festival. " Id. Even if holding the meeting at that time was necessary, the Court reasoned, the fiscal court could have held the meeting at a location that was more convenient than the county courthouse, which was "literally the epicenter of activity." Id. That being said, the Court nevertheless concluded that the Fiscal Court did not violate KRS 61.820 in holding the special meeting at the designated time and place nor did the meeting conditions violate KRS 61.840. Id. at 845. Although the Friday of the week during which the Daniel Boone Festival was held and the Knox County courtroom were admittedly not the most convenient time and location, respectively, at which to conduct the meeting, "it certainly was not an inconvenient time or location. The fact that a large number of citizens did attend proves this point." Id. Noting the special meeting "was announced to the public, and there is nothing on the record to indicate that persons wishing to attend or participate in the proceeding were effectively prevented from doing so[,]" the Court did not find a violation of KRS 61.820 or KRS 61.840. Significantly, the Court engaged in the following analysis:
. . . Kentucky's Open Meetings Act does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times. The intent of the open meetings statutes is to ensure that government business is not conducted in secret, that the public is adequately notified of the time and nature of government proceedings, and that interested citizens be afforded the opportunity to participate in such proceedings. In short, the open meetings statutes are designed to prevent government bodies from conducting [their] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require agencies to seek out the most convenient time or location.
Id. (Some emphasis original and some emphasis added.) Because the meeting at issue satisfied this standard, the Court determined that Knox County did not violate "either the letter or the spirit" of the Open Meeting Act. Id.
In light of the reasoning found in Hammons, the Board cannot be said to have violated the letter of KRS 61.820 even though 11:30 a.m. is undoubtedly not the most convenient time of day for the Board to have a regular meeting or even a convenient time for many; however, that is not our standard. This office found in 95-OMD-106 (applying the reasoning of 93-OMD-20, which involved meetings of a fiscal court) that "meetings of the school board held during school hours [were] not convenient" for the teacher appellant, but declined to conclude "on the basis of the information and facts made available that meetings of the school board held during school hours" were inconvenient for the residents of the county. Similarly, in 98-OMD-74, this office recognized that the timing of the board of education's special meeting, "arranged on one day's notice," would likely "exclude the members of the system with the greatest stake in the matter under discussion, namely the effected teachers, as well as the members of the public with the greatest interest in the matter under discussion ["a critical omission in the school system's staffing plan"], namely the parents of the effected school children," but could not conclude, "on the evidence presented, that 9:00 a.m. was an inconvenient time in contravention of KRS 61.820." In so holding, this office noted that if the Board "had had the luxury of several days to correct its omission, the law would have contemplated a greater attempt to accommodate the needs of teachers and parents directly affected by the matter before it." Id., p. 4.
Both of these decisions differ from the instant appeal insofar as most of the school board's meetings were not held during school hours in the former case and the latter case involved a special meeting that was "arranged on one day's notice, and with only one day remaining to correct a critical omission in the school system's staffing plan." In other words, neither of the school boards had a practice of conducting regular meetings at which public business was admittedly discussed in the morning and then voted upon later in the evening on a monthly basis, nor did Hammons involve such facts. In KRS 61.800 the General Assembly expressly declared that the "basic policy" of the Act is "that the formation of public policy is public business and shall not be conducted in secret[.]" When construing this provision, the Kentucky Supreme Court expressly recognized that public agencies should not attempt to avoid the requirements of the law to shield themselves "from unwanted or unpleasant public input, interference or scrutiny," Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997), since this declaration "is a strong indication that the Kentucky Legislature considered that the right of the public to be informed transcends any loss of efficiency." Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 886 (Ky. 1987)(emphasis added). Based upon the foregoing, this office finds that 11:30 a.m. on a weekday is not so inconvenient of a time as to violate KRS 61.820 when viewed in light of Hammons, but urges the Board to keep the foregoing principles in mind when deciding whether to discuss matters of public interest only during those meetings.
In light of this determination, the remaining question is whether the Board 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. . . .
(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 Board failed to issue a substantive written response within three business days of receiving Mr. Woolridge's complaint which, in all particulars, complied with KRS 61.846(1). Although Superintendent Johnston confirmed receipt of the complaint in a timely manner, she indicated that a response would be provided "as soon as possible." KRS 61.846(1) unquestionably requires more. 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. In sum, the Board violated KRS 61.846(1), but did not violate KRS 61.820.
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.
Dennis F. JanesNannette S. JohnstonKay SharonDavid Wilson IIJohn Wright
Footnotes
Footnotes
1 Contrary to Ms. Sharon's implicit assertion, KRS 61.810 provides that any meeting of a quorum of the members of a public agency "at which public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times" with the exception of those identified at KRS 61.810(1)(a)-(m). (Emphasis added.) In other words, the fact "[d]ecisions will not be made" at the 11:30 meetings is not dispositive. See 02-OMD-11.
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2 Enclosed with his appeal was a copy of the Board's regular meeting schedule, which is available on the Hardin County Schools' website, www.hardin.k12.us/boardabout2.htm, and which provides that the Board "meets on the third Thursday of each month, at 11:30 a.m. and 6:00 p.m. at the locations listed below. Special meetings may be called by the Board at times other than the regularly scheduled dates." The schedule further provides that meetings "are open to the public and the 6:00 meetings are televised."KRS 61.810(2) (dealing with a series of less than quorum meetings) is not implicated here as the Board must have a quorum present in order to have a regular meeting; accordingly, speculation regarding the intent of the members in scheduling the meetings at 11:30 is unnecessary.
3 Although members of the public do not have "the right to participate in the meeting and address during the meeting the members of the public agency, " the public does "have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires." 95-OMD-99, p. 2.
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4 "Public business" has been defined as "the discussion of the various alternatives to a given issue about which the board has the option to take action." Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 474 (Ky. 1998).
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5 The "meeting room conditions" are not an issue given that schools are not an objectionable location and the conditions there would generally "allow effective public observation" of the meetings in the relevant sense.
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