Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
These matters having been presented to the Attorney General in separate open meetings appeals, and having been consolidated for purposes of efficiency, we find that the Knott County Fiscal Court violated the Open Meetings Act by conducting a telephone poll of its members on December 22, 2010, and by failing to respond to Emma Lois Pigman's January 5, 2011, open meetings complaints alleging this and other violations of the Act. Further, we find that the fiscal court failed to produce proof of compliance with the notice requirements for conducting a special meeting on January 3, 2011, and that, notwithstanding its claim that the meeting was properly noticed, it violated KRS 61.823 if these requirements were not satisfied. 1
In a written complaint submitted to Knott County Judge/Executive Randy Thompson, Ms. Pigman alleged that the fiscal court's December 22 "meeting," which was conducted by telephone, violated KRS 61.800 and 61.810, insofar as it excluded the public, and KRS 61.823(3) , insofar as it was not properly noticed. In a separate complaint, she alleged that the fiscal court's January 3, 2011, special meeting also violated KRS 61.823(3) insofar as there was no written notice of the meeting and some newly elected magistrates, the media, and the public were excluded from the meeting. As a means of remedying these alleged violations, Ms. Pigman proposed that all resolutions passed at the December 22, 2010, and January 3, 2011, meetings "be rescinded and added to the agenda of the next legally called meeting of the Knott County Fiscal Court." Additionally, she proposed that the fiscal court conform its conduct to the requirements of the Open Meetings and Open Records Acts. Having received no response to either complaint, 2 Ms. Pigman initiated this appeal.
In correspondence directed to this office, the Knott County Fiscal Court responded to Ms. Pigman's complaints. The fiscal court acknowledged the County Judge's failure to respond to the complaints, explaining that Judge Thompson "was unaware he was obligated to write Ms. Pigman within three days" but that he had now been advised that "he should promptly write the concerned citizen about any open meetings grievance . . . ." The fiscal court further acknowledged that telephone meetings are improper, intimating that they could be equated to emergency meetings, and indicating that it "will no longer continue the practice if possible." Finally, the fiscal court defended the adequacy of the notice of its January 3, 2011, special meeting. The fiscal court provided no proof of compliance such as a copy of the special meeting notice or a notice of the meeting that appeared in the newspaper. Having considered these arguments, we find that the Knott County Fiscal Court violated KRS 61.810(1), KRS 61.823(3) and (4), and KRS 61.846(1) as alleged in Ms. Pigman's complaints and appeals.
KRS 61.805(1) defines the term "meeting" as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. " The Open Meetings Act does not authorize a public agency to conduct a meeting, which is required to be open, by telephone. Rather, existing legal authority clearly prohibits this practice. See, Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Co., 554 S.W.2d 72, 73 (Ky. 1977) (Kentucky Supreme Court affirms trial court's decision voiding telephone votes of public agency) ; 02-OMD-153; 94-OMD-87; 93-OMD-20; 92-OMD-1728; OAG 92-151. This is consistent with the judicial recognition that the Open Meetings Act "is designed to require government agencies to conduct the public's business in such a way that the deliberations and decisions are accomplished in an atmosphere wherein the public and the media may be present," Jefferson County Board of Education v. Courier-Journal and Louisville Times Co., 551 S.W.2d 25, 26 (Ky. App., 1977), and the legislative recognition that "the formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.800. Telephonic meetings of a quorum of the members of a public agency, or a series of telephonic meetings where the members participating collectively constitute a quorum, constitute a violation of KRS 61.810(1) declaring that "[a]ll meetings of a quorum of the members of any public agency at which any 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 . . . ." See also KRS 61.810(2).
Ms. Pigman alleges, and the fiscal court does not refute, that Judge Thompson advised her that he and the magistrates "decided that when there are only a couple of items on the agenda that the meetings can be held by telephone. " In its belated response to Ms. Pigman's complaint, the fiscal court seems to equate these telephonic meetings with emergency meetings, acknowledging that such meetings are "frowned" upon and agreeing to discontinue the practice "if at all possible." If, in fact, Judge Thompson made the statement Ms. Pigman attributes to him, he is wrong. Indeed, his statement finds no support whatsoever in the law. Nor does the argument that telephonic meetings are equivalent to emergency meetings and that the normal rules of proceeding are somehow suspended when public officials elect to conduct one. As noted, no authority exists in the Open Meetings Act, generally, or KRS 61.823(3), specifically, for telephonic meetings. The Knott County Fiscal Court is strictly prohibited from conducting telephonic meetings, regardless of whether it is or is not "at all possible" and must immediately discontinue this practice.
Turning to the allegation of an improperly noticed special meeting conducted on January 3, 2011, we begin with the recognition 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 observed:
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 that public agencies must fulfill prior to conducting a special meeting. KRS 61.823 provides, in relevant part:
(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) 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. 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.
It is the Knott County Fiscal Court's position that the January 3 special meeting that prompted Ms. Pigman's complaint was properly noticed. The fiscal court presents no proof to support this position. We can conceive of few allegations that can more easily be refuted than improper notice. The fiscal court need only provide this office with a copy of the written notice, and/or a copy of a newspaper notice, of the special meeting. In the absence of any such proof, we find that the weight of the evidence supports Ms. Pigman's allegation that the fiscal court violated KRS 61.823(3) and (4) by failing to provide adequate notice of its January 3, 2011, special meeting.
Judge Thompson's lack of familiarity with his duties under the Open Meetings Act did not excuse his failure to respond to Ms. Pigman's complaints. This is particularly true in light of the fact that he has held the office of county judge since October 2005. Consequently, we find that the Knott County Fiscal Court violated KRS 61.846(1) by failing to issue written responses to those complaints within three business days. KRS 61.846(1) provides that upon receipt of an open meetings complaint:
[t]he 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. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. 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. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
(Emphasis added.) We urge the fiscal court to review the referenced provision to insure that future open meetings complaints are promptly addressed.
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.
Emma Lois PigmanRandy ThompsonTimothy Bates
Footnotes
Footnotes
1 The fiscal court advises that on January 22, 2011, it conducted another special meeting and that "all items discussed at the December 22, 2010, telephone poll and at the January 3, 2011, meeting were voted on again and all items passed unanimously." Pursuant to KRS 61.846(1), "efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. " Perforce, these efforts have no bearing on our review.
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2 In her letters of appeal, Ms. Pigman alleges additional violations of the Act including the failure to comply with KRS 61.835 relative to approval and availability of meeting minutes "no later than immediately following the next meeting of the body," and the failure to comply with KRS 65.055, relative to distribution of written open meeting/records materials to newly elected officials within sixty days of their election. To the extent these allegations can properly be addressed in an open meetings appeal to the Attorney General, they are not ripe for review because they were not alleged in either complaint. 40 KAR 1:030 Section; 00-OMD-109; 06-OMD-211; 06-OMD-257; 08-OMD-009.
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