Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Office of the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Butler County Fiscal Court did not violate the Open Meetings Act by conducting ten to twelve special meetings between January 1, 2011, and July 25, 2011. 1 However, the outcome of this appeal would be different, and a violation of KRS 61.820 would be found, if proof were presented that the fiscal court intentionally conducted the majority of its business at special meetings to avoid public scrutiny.
In a written complaint submitted to Butler County Judge/Executive David Fields on August 2, 2011, Robert Cron alleged that the fiscal court circumvented the Open Meetings Act by conducting numerous special meetings of which the public was effectively denied knowledge. 2 Mr. Cron explained:
[I]t is virtually impossible to notify all of the public that such a meeting is going to take place. In Butler County there is but one weekly newspaper, which comes out on Wednesday of each week, [and] a radio station that has very limited range[.] [Additionally,] many people do not have internet service available, and very, very few people make a special trip to Morgantown to look at the fiscal court's bulletin board . . . to see if a special meeting has been scheduled.
He noted that he was the only attendee at a number of special meetings conducted in the past six months, and that he learned of these meetings only because a fiscal court member notified him as a courtesy. As a means of remedying the alleged violation, Mr. Cron proposed that the fiscal court increase the duration, 3 as well as the number, 4 of regular meetings and reduce the number of special meetings, calling them "only when it is absolutely necessary. "
On August 3, 2011, the fiscal court responded to Mr. Cron's complaint, asserting that he had identified no open meetings violation. The fiscal court reasoned:
Special called meetings are only used when absolutely necessary . . . . The number of meetings held by the fiscal court within any given time frame seems to be more of an operational policy decision than a legal decision.
In supplemental correspondence, the fiscal court maintained that "all of the special meetings were necessary," noting that "there does not seem to be any restriction within the Open Meetings Act concerning the type and number of meetings used." It was the agency's position that "the Open Meetings laws are not concerned with how efficiently government operates or how wisely government operates. The open meetings laws simply require that whatever governing occurs take place in the full view of the public."
While we agree with the final statement, and endorse much of the fiscal court's response, we are mindful that knowledge of special meetings cannot be imputed to the public and that, absent successful notification of special meetings to the public consistent with KRS 61.823, "whatever governing occurs" is not likely to "take place in the full view of the public." KRS 61.823(4)(a) provides:
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. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(Emphasis added.)
Herein lies the rub. Butler County's only newspaper, The Butler County Banner, has a weekly circulation publishing on Wednesday of each week. Its publisher confirmed that although the fiscal court delivered notice of special meetings at least twenty-four hours before the meeting occurred on most occasions, the newspaper was unable to publish that notice owing to its circulation schedule. Thus, the publisher advised, few, if any, of the fiscal court's special meeting notices appeared in the newspaper. 5 The requirements of timely written notice of special meetings, codified at KRS 61.823(4)(a), are satisfied if the notice is "calculated so that it shall be received at least twenty-four hours before the special meeting. " Twenty-four hour notice therefore satisfies the statutory requirement. It does not address the problem of a community served by a newspaper with a weekly circulation and a radio station that does not broadcast live around the clock.
Kentucky's courts have determined 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 v. City of Maysville, 790 S.W.2d 450, 45 (Ky. App. 1990). Indeed, the courts have declared, "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 (1997). Fundamental to these opinions is the statement of legislative intent recognizing that "the formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.800. Relying on these authorities, at page 6 of 09-OMD-119 the Attorney General "remind[ed]" agencies "that special meetings are the exception to the 'rule' of a regular schedule found at KRS 61.820."
We agree with the fiscal court that, standing alone, its election to conduct at least twelve special meetings in a seven month period does not violate any provision of the Open Meetings Act. If, however, proof was presented that the fiscal court intentionally conducted the majority of its business at special meetings to avoid public scrutiny, this office would find a violation of KRS 61.820, requiring public agencies to hold their meetings "at specified times and places convenient to the public" and "provide for a schedule of regular meetings." The likelihood of the Attorney General reaching this conclusion is far greater in a community whose only media organizations publish and/or broadcast on a limited basis. The best practice for public agencies operating in this environment is to conduct agency business during regular meetings, at those times and places specified in their regular meeting schedules, even if this means increasing the number of regular meetings per month. Where the need for a special meeting arises, such agencies should make an effort to transmit meeting notice to the media "as soon as possible," rather than transmitting it "at least twenty-four hours" before the meeting, to facilitate media publication of special meeting notice.
The Open Meetings Act does not directly address special meeting notice in communities served by newspapers that circulate on a less than daily basis or radio stations that do not broadcast live twenty-four hours a day. Nevertheless, agencies that are committed to "maximiz[ing] notice of public meetings" and ensuring the broadest possible public participation, would do well to implement the statutory requirements found at KRS 61.820 and 61.823, as well as all other provisions of the Open Meetings Act, in the manner most favorable to the public. Because Butler County is such a community, we encourage the fiscal court to review, and perhaps modify, its current practice relative to the conduct of special meetings to encourage the broadest possible public participation in its open meetings.
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.
Distributed to:
Robert D. CronDavid FieldsRichard Deye
Footnotes
Footnotes