Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Butler County Fiscal Court violated the Kentucky Open Meetings Act in failing to comply with any of the notice requirements codified at KRS 61.823(3) and (4) prior to holding a special meeting on January 6, 2011. In responding to Robert D. Cron's appeal, the Fiscal Court acknowledged that no attempt was made to comply with either of these mandatory provisions; accordingly this office finds the inaction of the agency constituted a violation of both. By failing to issue a written response within three business days of receiving Mr. Cron's written complaint, Judge Executive David Fields, in his capacity as presiding officer of the Fiscal Court, also violated KRS 61.846(1).
By letter directed to Judge Fields on January 10, 2011, Mr. Cron alleged that he "knowingly, and willfully, called the Magistrates for a meeting of the Butler County Fiscal Court, with instructions to meet at the Butler County Courthouse" for the purpose of discussing the hiring of a new employee to work part-time "and be attached to your staff." All of the magistrates were present, according to Mr. Cron, "and participated in this meeting by discussing a specific individual to fill this new position." Based upon the foregoing, Mr. Cron "charg[ed]" Judge Fields/the Fiscal Court with violating the Act by "[c]alling a special meeting of the Butler Co. Fiscal Court, outside the eye of the public, and failure to notify the public," and not posting notice of the special meeting twenty-four (24) hours in advance "on a specific bulletin board, and[/]or, notice published in the local media when possible." Mr. Cron further alleged that in calling the meeting illegally, Mr. Fields "subjected new Magistrates to becom[ing] unwitting accomplices in breaking" the law.
To remedy these alleged violations, Mr. Cron proposed that Judge Fields "[a]cknowledge publicly" that he violated the Act, "and then apologize to the people of Butler County," and the new magistrates. Mr. Cron further proposed that any action taken "should become null and void, and a new, and LEGAL meeting should be called, or this business conducted at a regular Fiscal Court meeting." In closing, he suggested that Judge Fields "contact the Office of the Attorney General, [Civil Division, Opinions Branch], if you have questions, or you are not sure about applications of these Laws, thereby eliminating potential violations."
Having received no response to his complaint, Mr. Cron initiated this appeal by letter dated January 19, 2011. Upon receiving notification of his appeal from this office, Butler County Attorney Richard J. Deye responded on behalf of the Fiscal Court, in relevant part, as follows:
On Wednesday[,] January 12, 2011, my staff member gave to me three complaints involving Open Meetings violations for a meeting of the Fiscal Court which took place on January 10, 2011. On behalf of the [Fiscal Court] I responded to those three Open Meetings complaints. For reasons that are unknown (and really irrelevant) I was not aware of the Open Meetings complaint concerning the January 6th meeting of the Fiscal Court. At this time, I would extend my apologies to the Attorney General, Mr. Cron, County Judge Executive David Fields, and the members of the Fiscal Court for whatever part I played in failing to respond. I believe that if someone lodges an Open Meetings violation complaint that the complaint deserves the courtesy of a response.
With all of this being said, if I had been aware of the Open Meetings complaint my response would have been that the complaint was well-taken. The Fiscal Court met as a group on January 6, 2011, to interview applicants for a part-time position with the [Fiscal Court]. The five magistrates and the [Judge Executive] were in attendance. One or more job applicants were interviewed during the meeting. While the applicants were interviewed, the Court took no action. This meeting was neither advertised nor posted as required by the Open Meetings Act. Since a quorum of the Court was present, and since [C]ounty business was discussed, the meeting should have been noticed and posted.
Disputing Mr. Cron's view regarding the intentional nature of the actions by the Fiscal Court, Mr. Deye indicated that "[i]t simply was a mistake and we must and will strive to do better."
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 his complaint/appeal, Mr. Cron 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.
"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. The Fiscal Court has acknowledged its failure to comply with KRS 61.823(3) and (4)(c), and has not refuted Mr. Cron's allegation that members of the agency were called as opposed to being notified in person or via facsimile machine, regular mail, or e-mail, per KRS 61.823(4)(a) or (b)(if applicable); accordingly, this office will not belabor the issue as the law is well-settled regarding application of these requirements. See, for example, 02-OMD-11 and 03-OMD-197. Given the overwhelming weight of legal authority, this office concludes that the Fiscal Court violated the Open Meetings Act in admittedly failing to comply with all of the notice requirements codified at KRS 61.823 prior to holding a special meeting on January 6, 2011.
In addition, the Fiscal Court admittedly 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.
As the record establishes, the Fiscal Court did not respond upon receipt of Mr. Cron's complaint which, in all particulars, complied with KRS 61.846(1); however, Mr. Deye has also conceded this error in responding to Mr. Cron's appeal on behalf of the Fiscal Court. Further analysis or discussion is therefore unwarranted. 1 Assuming that Judge Fields/the Fiscal Court did not intentionally disregard the requirements of KRS 61.823 and 61.846(1), but committed honest mistakes as Mr. Deye asserted, future violations of this nature can and will presumably be avoided.
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.
Robert D. CronDavid FieldsRichard Deye
Footnotes
Footnotes
1 This office finds no error in the Fiscal Court's apparent practice of seeking Mr. Deye's counsel before responding to requests made under the Open Records Act or complaints made under the Open Meetings Act in the interest of efficiency assuming that no delay beyond the statutorily authorized time frame of three business days occurs.