Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The questions presented in these appeals filed under the Open Meetings Act by Robert D. Cron are whether the Butler County Fiscal Court failed to give proper notice of the change in the time at which its January 10, 2011, was going to begin and whether it discussed matters other than those publicly announced prior to convening the closed session held at that meeting. Because these appeals involve the same parties and the same public meeting, they have been consolidated for purposes of review under KRS 61.846(2). In light of the conflicting evidence presented, this office is unable to conclusively resolve the former question although the weight of the evidence supports the Fiscal Court's position that public notice was actually provided in accordance with KRS 61.823. The parties do not disagree regarding the sequence of events which resulted in the other complaint but disagree regarding the legal implications thereof, namely whether the Fiscal Court violated KRS 61.815(1)(d). To the limited extent discussion of any subject not falling within the parameters of KRS 61.810(1)(f), upon which the Fiscal Court apparently relied in convening the closed session, did, in fact, occur, this office must conclude that it violated KRS 61.815(1)(d) though it also did apparently end the illegal discussion promptly upon realizing its error.
Issue of proper notice
In his January 10, 2011, complaint directed to Judge Executive David Fields, Mr. Cron alleged that the Fiscal Court violated KRS 61.820 (providing that all meetings of public agencies "shall be held at specific times and places which are convenient to the public" and "shall provide for a schedule of regular meetings" which "shall be made available to the public") in changing the starting time for the January 10 regular meeting from 6:00 p.m. to 5:30 p.m. without giving "proper, advance notice to the public," the members of the Fiscal Court and the media. 1 To remedy this alleged violation, Mr. Cron proposed that Judge Fields acknowledge this error at a regularly scheduled meeting of the Fiscal Court and "[p]ublish in the media available . . . why and how you did violate the Open Meetings Act, and promise to follow the Open Meetings Act as written[.]"
In a timely written response, Butler County Attorney Richard J. Deye advised that "a copy of the tentative agenda listing the agenda for the January 10, 2011, meeting of the Butler County Fiscal Court as well as the designated time of 5:30 p.m., was forwarded to each of the magistrates and to each media organization on file with the Court." Mr. Deye further advised that "a copy of the notice was posted on the bulletin board in the hallway of the Butler County Courthouse outside the office of the Butler County Judge Executive. The notices were forwarded and posted at least 24 hours prior to the time of the meeting." Accordingly, the position of the Fiscal Court is that the January 10, 2011, meeting was properly noticed. Because the meeting time was changed, Mr. Deye observed, "it is possible that members of the media as well as others may have failed to notice the change."
Acknowledging that he has "no way of knowing if the Magistrates did in fact receive this notice, " Mr. Cron subsequently initiated this appeal, noting that he did not see a notice in the Sunday edition of The Banner nor did he find it listed on the website for the Beech Tree News. Mr. Cron asked two reporters for the latter publication if they were notified of the meeting change and they indicated they had not been. According to Mr. Cron, one was half of an hour late in arriving and "several people came in late, thinking the meeting started at 6:00 PM." In further support of his argument, Mr. Cron disputed that a copy of the notice was posted outside the Judge Executive's office at least 24 hours prior to the meeting. "A careful survey of ALL of the bulletin boards at the Courthouse was made," he asserted. Mr. Cron also included a written statement from the former Butler County Sheriff, Joe Gaddie, which basically states that no such notice was posted on the bulletin board as of January 10 and otherwise agrees with Mr. Cron's version of events. Mr. Gaddie also noted that while the Fiscal Court was in closed session he checked "all the bulletin boards throughout the upstairs and downstairs public areas of the [C]ourthouse to see if the notice of the meeting had ever been posted. It had not."
Upon receiving notification of Mr. Cron's appeal, Mr. Deye supplemented his response on behalf of the Fiscal Court. Enclosed with Mr. Deye's response were affidavits from Kim Phelps, Executive Secretary for Judge Fields, and Diane Dyer, owner and operator of Beech Tree News, an online newspaper "covering news events in and around Butler County[,] Kentucky." Mr. Deye advised:
To paraphrase Mr. Cron, the issue may be who is correct. My personal opinion is that Mr. Cron is a truth teller as well as Joe Gaddie as well as Kim Phelps and Diane Dyer. We all perceive what we hear and see in different fashions. The affidavit of Ms. Dyer indicates that at the time of the meeting she was unaware that the notice she received had the altered meeting time. Kim Phelps has signed a statement under oath indicating that she posted a notice on the bulletin board. Joe Gaddie has signed a letter indicating that he didn't see one. I suppose it is possible that someone could have removed the notice before Joe Gaddie or Mr. Cron had an opportunity to look for it. I don't know.
My personal recollection is that when the meeting started at 5:30 p.m. (or thereabouts) all five of the magistrates were present. My recollection is that Mr. Cron was present. My recollection is that when the meeting started there were many other people in the meeting room. Those persons present at 5:30 obviously got notice somehow. I do recall Diane Dyer coming in late. I don't recall Joe Morris [Ms. Dyers' associate] coming in, but if he arrived after 5:30 p.m. I certainly would not argue with that. I honestly do not recall a large influx of people arriving at or shortly before 6:00 p.m. The point is that there were many people present when the meeting started at 5:30 p.m. and if others came in later they were not in such sufficient numbers so as to draw attention to the fact. . . .
In light of the affidavits provided on appeal in support of the Fiscal Court's position, as well as the copy of the media notification (directed to WLBQ, "Heather-Banner" and "Diane-Beech Tree " and listing 5:30 p.m. as the time) dated January 7, and the copy of the "tentative" agenda (containing a handwritten notation indicating that it was posted at 4:15 - on January 7 according to Ms. Phelps' affidavit) 2 attached to Ms. Phelps' affidavit, the weight of the conflicting evidence presented seems to favor the Fiscal Court; however, this office is unable to conclusively resolve a factual dispute of this nature.
According to Ms. Phelps' affidavit, on January 7, 2011, she "forwarded a notice listing the time of the meeting as well as the tentative agenda to all members of the media on record with the Butler County Fiscal Court." Ms. Phelps identified "the Beech Tree News, the Butler County Banner, and Radio Station WLBQ" as the "three media agencies who have filed requests with the Butler Fiscal Court requesting notice of such meetings." In addition, Ms. Phelps advised that she "posted a copy of the notice on a bulletin board in the hallway of the Butler County Courthouse. . . . To the best of her knowledge, recollection, and belief, the notice was posted on the 7th day of January, 2011 at approximately 4:15 p.m." Ms. Phelps also confirmed that she "sent the notice along with the tentative agenda to each member of the Butler County Fiscal Court." In essence Ms. Phelps verified that the Fiscal Court complied with KRS 61.823.
Ms. Dyer advised that "she was in fact late for the meeting." However, "the reason that she was late for the meeting was that she had been attending another meeting of the city government and that the two meeting times were such that she could not get to the Fiscal Court Meeting until after it started. " Because Ms. Dyer knew she had to attend the other meeting, she also knew "that she would be late for the meeting of the Butler County Fiscal Court." Accordingly, Ms. Dyer asked Joe Morris to attend the meeting in her place. Having reviewed Mr. Gaddie's letter, Ms. Dyer noted that she "recalls having a conversation with Mr. Gaddie substantially similar to what Mr. Gaddie reports in his letter." After the meeting, however, Ms. Dyer "had an opportunity to review the notice which she had received announcing the meeting." Ms. Dyer received a faxed notice of the January 10 meeting "several days before the actual meeting. Upon review of the notice the notice clearly indicated that the meeting time was at 5:30 p.m." Ms. Dyer "simply overlooked the time of the meeting. . . . [and] since she had overlooked the time for the meeting to be held . . . she did not tell her associate Joe Morris of the change in time either. As a consequence Joe Morris had no knowledge of the correct time for the meeting." Ms. Dyer's statements to Mr. Gaddie "reflected her knowledge of the matter as it existed at the time." With regard to provision of the notice, Ms. Dyer stated that the Fiscal Court "has complied with her understanding of the open meetings notice requirements." In light of this context in which to view Mr. Gaddie's letter, upon which Mr. Cron partially relied, this office finds the Fiscal Court's explanation persuasive.
As the Attorney General has consistently recognized, the role of this office in adjudicating a dispute arising under the Open Meetings Act is narrowly defined by KRS 61.846(2), pursuant to which the Attorney General "shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850"; nothing more, nothing less. "Such decisions involve the application and interpretation of the requirements of the Open Meetings Act, and are in the nature of questions of law." 00-OMD-142, p. 6. As with appeals arising under the Open Records Act, "this office is not empowered to resolve disputes of a factual nature in the context of an Open Meetings appeal." 10-OMD-135, p. 3. Our review is confined to the written record. See 05-OMD-188; 00-OMD-142; 00-OMD-96. In other words, the Attorney General "does not conduct hearings, gather evidence, conduct witness interviews, etc. in resolving disputes arising under the Open Meetings Act [.]" 10-OMD-135, p. 4. Only the courts are vested with authority to perform such functions. Although this office cannot explain how or why the notice posted on the bulletin board was apparently not on there as of January 10 when Mr. Gaddie checked, the remainder of the evidence presented weighs in favor of the Fiscal Court. As in 05-OMD-096, 07-OMD-253, 08-OMD-234, 08-OMD-164, 09-OMD-014, and 10-OMD-124, to name a few, this office is presented with two widely disparate factual narratives and is unable to conclusively resolve the related factual discrepancy; accordingly, this office declines to find that a violation occurred especially in light of the persuasive contrary evidence provided here.
Issue of improper discussion
Mr. Cron's second complaint regarding the January 10 meeting of the Fiscal Court alleged that a violation of KRS 61.815(1)(d) occurred when Judge Fields "did not include the fact that [he] was going to speak to the magistrates about the most recent Open Meetings Act violation, which in fact [he] did explain to the [m]agistrates." Because Judge Fields' explanation "was not announced prior to the Court going into closed session, " Mr. Cron argued, it could not properly be discussed. To remedy this alleged violation, Mr. Cron proposed that Judge Fields "download [a publication available on the Legislative Research Commission's website at http://www.lrc.ky.gov/Lrcpubs/OpenMtgsRecords.pdf]], read it, and keep it on file in your office for future reference. Then report back to the people, at the April regularly scheduled meeting of the Fiscal Court, that you have read and understand thisOpen Meetings Act. " By letter dated January 13, Mr. Deye advised Mr. Cron that since his complaint "involves all members of the Fiscal Court" he felt that his response deserved having the "input of all persons accused of being in violation." Due to Mr. Deye's court schedule, he was unable to contact the magistrates "to seek their recollection and input" regarding what occurred in the closed session that week and thus requested an extension of seven days in which to provide a final response, advising that he "would hope to have a response available by January 21" but would respond sooner if possible.
By letter dated January 24, 2011, Mr. Cron initiated this appeal, explaining that Judge Fields violated the Act "by explaining/apologizing to the Magistrates about a previous incident that occurred on January 6, 2011, another Open Meetings violation." The closed session was held for the purpose of discussing the hiring of an individual (presumably KRS 61.810(1)(f) was relied upon and KRS 61.815 was complied with as Mr. Cron later confirmed). After the Fiscal Court returned to open session a vote was taken and the individual was hired. Quoting KRS 61.815(1)(d), Mr. Cron took issue with the apparent discussion of the circumstances that surrounded his previous complaint regarding the January 6 meeting.
Mr. Cron subsequently provided this office with supplemental correspondence, advising that he received "the enclosed response from Mr. Deye on Saturday, January 22, 2011, the same day I mailed the appeal." Emphasizing that he filed the appeal when several attempts to contact Mr. Deye were unsuccessful, Mr. Cron also clarified that, in his opinion, Judge Fields alone is responsible for the violation of KRS 61.815(1)(d) which resulted in his latest appeal. In his January 18 response, a copy of which Mr. Cron attached to his January 24 correspondence, Mr. Deye advised that seven people were in attendance during the January 10 closed session, those being the five magistrates, Judge Fields, and himself. Mr. Deye summarized the discussion as follows:
At the beginning of the closed session, Judge Fields stated that the purpose of the closed session was to discuss personnel matters involving the hiring of a County employee. The Judge commented that the process of interviewing job applicants [at a special meeting on January 6 that was not properly noticed] may have resulted in a[n] Open Meetings violation and that was the reason the court was going into closed session at that time (January 10, 2011). One or more questions were asked as to how the actions of the Court violated the Open Meetings Act. A comment was made that the only thing that could be discussed in a closed session was the subject of the closed session. Thereafter, the Court discussed the qualifications and attributes of the various job applicants and went back into open session to complete the hiring process.
In essence, the words, "open meetings violation" were spoken, questions or comments were made to determine what violation took place and the closed session returned to [its] stated purpose. There was no discussion of formulating any response to the alleged Open Meetings violation or the formulation of any course of action to be taken by the Court in the future. . . . The Judge was explaining to the Court members the purpose of the closed session and as part of that explanation mentioned a previous Open Meetings violation. When questions or comments were made about the alleged Open Meetings violation, the closed session was redirected to its stated purpose. I hope this is how the Open Meetings Act contemplates that public officials should conduct closed sessions.
It is the Fiscal Court's belief "that since there was no engaged discourse concerning the alleged Open Meetings violation and since the Court did not discuss any formulation of policy," that no "substantive wrongdoing" occurred. "Without admitting any wrongdoing," Mr. Deye concluded, "the Court members have agreed to review the materials you suggested." Upon receiving notification of Mr. Cron's appeal from this office, Mr. Deye advised that after conferring with his staff he believes that his January 18 response was mailed to Mr. Cron though for "whatever reason" it apparently did not reach Mr. Cron prior to January 21. Mr. Deye agreed that Mr. Cron's "recitation of the chronological history as set out in the appeal is correct." Accordingly, the only questions remaining are whether the Fiscal Court violated KRS 61.846(1) in failing to issue a timely written response upon receipt of Mr. Cron's complaint, and whether the Fiscal Court violated KRS 61.815(1)(d) in discussing, however briefly, matters that were not publicly announced prior to convening the January 10 closed session. The short answer to both questions is "yes."
Although the Fiscal Court issued a response within three business days on January 13, Mr. Deye's reason for delay in this instance was entirely reasonable, and there is no evidence to suggest bad faith on the part of the Fiscal Court, KRS 61.846(1) is clear on its face and it does not provide for extensions of time in which to respond. Rather, it provides that a 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 . . . and shall notify in writing the person making the complaint, within the three (3) day period of its decision." KRS 61.846(1) further provides that a response "shall be issued by the presiding officer [Judge Fields in this case], or under his authority, and shall constitute final agency action." As in 11-OMD-019 (In re: Robert D. Cron/Butler County Fiscal Court, issued February 1, 2011, in which the agency conceded this violation), the Attorney General "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." Id., p. 6. A complainant may, of course, agree to a reasonable delay, but failing to issue a final written response within three business days of receiving a complaint, regardless of the reason, constitutes a violation of KRS 61.846(1). Further discussion is unwarranted here given that both parties are clearly familiar with existing law on the subject.
Recognizing that extraordinary circumstances occur which might justify a public agency discussing public business during a closed session, the General Assembly created a number of exceptions to this general rule, which are codified at KRS 61.810(1)(a)-(n). To promote the goal of maximizing notice to the public, the General Assembly enacted KRS 61.815(1)(a)-(d), pursuant to which:
[T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
In construing KRS 61.815, Kentucky's highest courts have recognized that "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)(citation omitted). Consequently, "the courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id. As previously indicated, resolution of the final question presented here turns on the language of KRS 61.815(1)(d). The facts are not in dispute. The statutory language is unambiguous. With regard to application of this provision, the Kentucky Supreme Court has observed:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. In this case, the minutes of the Board do not reflect any mention of the "proposed or pending litigation" [here, the "personnel exception"] to the Open Meetings Act. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. [Citations omitted.] We agree with the language written by then Court of Appeals Judge Johnstone and concurred in by the panel composed of Judges Schroder and Wilhoit that "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny. Unfortunately, we believe that is precisely how they were used in this case."
Discussions between Board members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct.
Ratliff at 924 (emphasis added). Ratliff is dispositive on this issue. See 03-OMD-170; 06-OMD-150; 08-OMD-145.
Given the mandatory language of KRS 61.815(1)(d) and this judicial pronouncement, further analysis is unwarranted. To the extent the Fiscal Court discussed a previous Open Meetings violation or any topic not identified at KRS 61.810(1)(f), the statutory provision upon which it relied in convening the January 10 closed session, albeit briefly and incidentally to a permissible topic, it violated KRS 61.815(1)(d).
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 J. Deye
Footnotes
Footnotes
1 Although neither party refers to any provisions of KRS 61.823 in any of the correspondence related to this appeal, Mr. Cron was implicitly relying upon this provision as the wording of his complaint evinces just as Mr. Deye implicitly asserted that the Fiscal Court did, in fact, comply with all of these notice requirements for special meetings. "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." 92-OMD-1840, p. 3; 02-OMD-11. Inasmuch as both parties are familiar with KRS 61.823(3) and (4) generally, and the related question here amounts to a factual dispute rather than application thereof, this office refers the parties to 11-OMD-019 (In re: Cron/Butler County Fiscal Court, issued 2/1/11) and the authorities cited therein rather than unnecessarily lengthening this decision with a repeat of the well-established law in this area.
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2 Although not specifically challenged here, this office is compelled to note in the interest of ensuring future agency compliance that a " tentative" agenda is not permissible inasmuch as KRS 61.823(3) specifically requires that a written notice containing the (impliedly fixed) agenda be provided and that discussions and action "shall be limited to items listed on the agenda in the notice. "
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