Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Butler County Fiscal Court violated the Kentucky Open Meetings Act in failing to ensure that all members of the public in attendance during its regular meeting on August 8, 2011, were provided with a copy of the agenda contained in the "media packets" that were provided to public officials and members of the media in attendance. The Fiscal Court apparently failed to anticipate having a larger crowd in attendance for its August 8 meeting, at which the Morgantown City Council and the Fiscal Court held a joint closed session, and thus did not prepare a sufficient number of copies in advance nor did anyone make additional copies to accommodate the crowd. However, the Fiscal Court's general practice is, apparently, to prepare copies of the agenda, which are then available in the meeting room "to whomsoever may desire one," which is consistent with the legislative policy codified at KRS 61.800 and existing case law applying provisions of the Open Meetings Act, if not expressly required thereunder. Because the Open Meetings Act does not directly address the availability of materials, including agendas, in the context of regular meetings, the Attorney General is unable to find that a violation of the Act was committed; however, this holding should not be construed to endorse any deviation from the agency's normal practice of providing attendees with such materials at the commencement of the meeting in order to maximize notice to the public of the business to be discussed, consistent with KRS 61.800 and existing case law.
By letter directed to Butler County Judge/Executive David Fields on August 9, 2011, Robert D. Cron alleged that the Fiscal Court violated the Open Meetings Act in providing members of the Fiscal Court, "County Staff members," the Sheriff, other elected officials, and members of the media with a copy of the agenda for the meeting, but failing to make copies available to members of the public. Mr. Cron acknowledged that a public agency is not required to prepare an agenda for a regular meeting, but argued that "if the moderator/Judge wants to use one, then the public has a right to not be discriminated against, and be provided a copy if they wish to have one." Mr. Cron cited 99-ORD-155 which, in his view, "reinforces the public's right to documents/agenda's [sic] when others are afforded the consideration of having them provided, such as the media packets provided by the Butler Co. Fiscal Court." Mr. Cron further noted that the Court "has provided copies of the agenda for many years, [but] last night it chose to be selective and discriminatory by ignoring the visiting public[.]" To remedy this alleged violation, Mr. Cron proposed that "[i]f and [sic] agenda is provided to anyone, it must also be provided to the visiting public, and as in the past, the public" should not be required to ask.
In a timely written response, Butler County Attorney Richard J. Deye asserted, on behalf of the Court, that the Open Meetings Act is essentially concerned with ensuring that "government actions take place in the full view of the public." He further acknowledged that under the Open Meetings Act, "proper public notice must be given every time an agency meets to discuss public business and subject to certain limited exceptions, all discussion of public business must be in view of the public." However, Mr. Deye was unable to discern "how the availability or unavailability of an agenda [for a regular meeting] rises to the level of an Open Meetings [v]iolation." Mr. Deye noted Mr. Cron's belief that the Court's failure on August 8, due to reasons "that are unexplained and unknown," to provide copies of the agenda, was "somehow selective and discriminatory. " Mr. Deye did not address the reasoning contained in 99-ORD-155, merely observing instead that it addressed issues arising under the Open Records Act as opposed to the Open Meetings Act. The Fiscal Court did not choose to comment regarding Mr. Cron's proposed remedy. Shortly thereafter, Mr. Cron initiated this appeal, initially noting that "[d]espite a [longstanding] policy" of making copies available to the public, "the fact that there is a copy machine in the courtroom," and Mr. Deye "has, in the past, made copies for those who wished [to receive] copies of certain documents during Fiscal Court meetings," none were provided in this instance.
On appeal, Mr. Cron reiterated that he was not contending that the Judge/Executive was required to provide an agenda for the August 8 regular meeting, but maintained that when the Fiscal Court opted to do so, it "also became responsible for [complying] with certain requirements." Mr. Cron asserted that the agenda "provides a means for the public to follow along with the proceedings of the business discussed, helps make them aware of the issues being discussed, and provides for orderly conduction of the meeting." Acknowledging that the public is not entitled to actively participate in the discussions, "and they have no idea of what information is in the packets, " Mr. Cron observed that the agenda enables the public to participate silently by staying informed. Citing 10-OMD-043 (public's right to be informed includes "not only the right to know what decisions are made but how they are made"), Mr. Cron argued that the "public should not be excluded from any considerations made by the [Judge/Executive], with regard[] to handouts given to some yet withheld from [others], and to do so violates the language and spirit of the Open Meetings Act, ignores the decisions of the Attorney General, and discriminates against the public at large." He acknowledged that the Sheriff provided him with his copy, but "no other visitor was asked if they wanted a copy, [and] no one offered to make copies for the visitors [.]" If an agenda is voluntarily prepared, Mr. Cron continued, and is provided to some, "the visitors are entitled to the same consideration as anyone else." The public was denied this consideration, and was therefore "unprepared to understand the business being discussed," on August 8, and that is what prompted his appeal.
Upon receiving notification of Mr. Cron's appeal from this office, Mr. Deye supplemented his response on behalf of the Fiscal Court as follows:
The Butler Fiscal Court meets in regular session on the second Monday of every month. As Mr. Cron points out, the Judge's staff oftentimes prepares several copies of the agenda and merely lays them in the meeting room to make them available to whomsoever may desire one. Depending on how many copies of the agenda are made and depending upon the attendance at the meeting, during some meetings everyone who wants an agenda receives one and during other months there may be insufficient copies. The meeting on August 8, 2011, was a unique meeting in that the county considered a joint venture with the government of the City of Morgantown concerning an economic development issue. The Morgantown City Council had a meeting at the same time and the City Council and Fiscal Court went into a joint closed session. This occurrence is unusual in that usually the two bodies do not meet at the same time or even in the same location. At any rate, because the City Council was meeting at the same time and the same location, there were more people in attendance at the meeting than would be normal. Apparently there were simply insufficient copies of the agenda for all those in attendance. Mr. Cron requested a copy of the agenda and one was provided to him. I continue to struggle to find an Open Meetings violation. I have been unable to find a section of the Open Meetings Act that touches upon the necessity to provide copies of the agenda to the public. Clearly the Open Meetings Act requires that agendas be established and adhered to in the case of special meetings and emergency meetings, but I have been unable to find any provisions [stating] that the failure to provide copies of the agenda to members of the public attending the meeting is a violation. . . .
In closing, Mr. Deye observed that "availability of copies of the agenda for the public has never been an issue in the past[,]" which Mr. Cron "as much as admit[ted]." On August 8, 2011, Mr. Deye reiterated, "there were simply more people in attendance than there were copies of the agenda available." To suggest that the actions of the Fiscal Court were somehow "discriminatory" based upon this isolated occurrence, Mr. Deye further observed, is incorrect. By letter dated August 19, 2011, but received in this office on August 22, 2011, Mr. Cron clarified that he only received a copy of the agenda upon verbalizing his request as the meeting was being adjourned, rather than receiving it as the meeting commenced per normal, so he was unable to follow along. Mr. Cron reiterated that he was the only visitor, "not counting the City [Council], media, and county employees who were present, to be given a copy of the agenda, moments before the meeting adjourned." According to Mr. Cron, the "actual visitors numbered perhaps 8," in terms of people "without business before the court[.]" Mr. Cron explained that copies of the agenda have "nearly ALWAYS been handed out to the visitors. Sometimes they are passed out by the Judge's Secretary, sometimes by volunteers, sometimes put in a stack on the handrail, but copies have been distributed to visitors using these means." (Original emphasis.) For unknown reasons, none of these methods were used on August 8. Although Mr. Cron's points are well-taken, and this office has difficulty understanding why the Court did not simply make additional copies after the need became apparent, especially in light of its normal or general practice in this regard, the record on appeal does not substantiate his claim that a violation of the Act was actually committed.
As the Attorney General has consistently recognized, our analysis must be guided by the legislative declaration of intent found at KRS 61.800, pursuant to which "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." In construing this provision, the Kentucky Supreme Court has 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), because 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). "The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions." Floyd County Board of Education, above, at 923.
It is undisputed that the Fiscal Court's August 8 meeting was a regular meeting; accordingly, KRS 61.820 is the applicable provision. Pursuant to KRS 61.820:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
In contrast to KRS 61.823, the provision which governs special meetings, and which expressly requires the inclusion of an agenda in the posted written notice of such meetings, 1 KRS 61.820 does not require agencies to prepare an agenda for a regular meeting. Both parties agree on this point. However, this office has also consequently recognized that if a public agency elects to prepare one, "it is not bound to observe the standard of fair notice to the public of particular topics to be discussed or acted upon that was recently articulated [in 01-OMD-175]." 01-OMD-181, p. 5; 08-OMD-212.
In 01-OMD-175, this office recognized that "[b]ecause no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings." 01-OMD-175, p. 6. Although implied in that decision, shortly thereafter the Attorney General expressly held "that the description of items to be discussed or acted upon in the non-mandatory agenda for a regular meeting need not be sufficiently specific to ensure fair notice to the public." 01-OMD-181, p. 5. In so holding, the Attorney General also emphasized that he did not "mean to suggest that public agencies may prepare agendas for regular meetings that are consciously misleading or entirely inaccurate." Id. Rather, because no agenda requirements or limitation on discussions and actions for a regular meeting are statutorily imposed, "public agencies cannot be held to the same high standard in preparing their agendas for these meetings." Id.
As indicated, Mr. Cron acknowledges that an agenda was not statutorily required for the August 8 regular meeting of the Fiscal Court, focusing exclusively upon the agency's failure to make copies of the agenda contained in the media packets readily available to members of the general public in attendance. A review of the foregoing illustrates that no provision of the Open Meetings Act expressly addresses either the content or availability of agendas for regular meetings, or mandates that agendas for regular meetings be publicly accessible; however, this office has recognized, consistent with the express purpose of the Act in addition to existing case law, that while public agencies cannot be held to the same high standard in preparing agendas for regular meetings given the lack of statutory requirements, they also cannot be intentionally misleading or inaccurate. On the facts presented, this office is unable to find that a violation of the Open Meetings Act was committed, notwithstanding the legitimate concerns which prompted this appeal or the potential for abuse that would exist if a practice was adopted that would enable a public agency to vote and take action regarding a matter(s) identified only with reference to an agenda not everyone can readily access. However, best practice would be for a public agency to distribute agendas to all in attendance when a meeting commences if one has been voluntarily prepared for a regular meeting, to maximize notice of the business to be discussed, and possibly acted upon, consistent with the legislative declaration of policy codified at KRS 61.800 as well as the judicially recognized purpose of the Act. See Lexington Herald-Leader Company and Floyd County Board of Education, above, and the authorities cited therein.
This office has not previously had occasion to comment on the precise question presented; however, additional guidance concerning related issues can be found in the context of a dispute arising under the Open Records Act, namely 06-ORD-171, wherein the Attorney General concluded that whether to distribute "Personnel Board Meeting Packets" in advance of a meeting "would be a matter of discretion of the public agency" because "the Open Records Act does not speak to this issue." Id., p. 4. In 06-ORD-171, this office quoted extensively from 99-ORD-155, the decision upon which Mr. Cron partially relied, which recognized that the public agency was not obligated to honor the subject request for a copy of "all the materials provided to the school board members in their board packets each month" to the extent it was prospective, but also said:
Nevertheless, we believe that it is incumbent on the Board to adopt a uniform policy relative to release of board packets. In an early opinion, the Attorney General recognized that "agencies should have uniform policies regarding inspection of their records. If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect." OAG 82-394, p. 5. As we subsequently observed, the exceptions to public inspection:
OAG 82-394, p. 3; OAG 82-234; OAG 89-79 cited in OAG 92-30 and 95-ORD-9.
It is not proper to selectively enforce the exceptions. If, as [the requester] alleges, the Board has, at past meetings, released copies of its agenda packets to selected members of the audience, its actions are inconsistent with the spirit, as well as the letter, of the Open Records Act. KRS 61.872(2) clearly provides that " any person shall have the right to inspect public records." (Emphasis added.) [The requester], or his designee, must be accorded the same treatment as any other person who attends the Board's meetings, and the decision to release materials in the packets must turn on the content of the record, not the identity of the individual asserting his right of access.
99-ORD-155, pp. 3-4.
Neither 99-ORD-155 nor 06-ORD-171 is controlling here inasmuch as the disputes arose under the Open Records Act, and the materials contained in the agenda packets, rather than simply the agendas, were being sought; nevertheless, our holding today is a logical extension of this reasoning. Public agencies cannot "selectively enforce the exceptions" to the Open Records Act by making copies of media packets available only "to selected members of the audience," without being "inconsistent with the spirit, as well as the letter, of the Open Records Act. " 99-ORD-155, p. 4. Similarly, whether to distribute copies of the agenda prepared for a regular meeting is "a matter of discretion of the public agency" because the "Open [Meetings] Act does not speak to this issue," 06-ORD-171, p. 4, but "public agencies should not be content when, "during some meetings everyone who wants an agenda receives one and during other months there may be insufficient copies," given how easily this problem can be remedied. Nevertheless, because the decision of whether to prepare an agenda for a regular meeting is discretionary, and the Open Meetings Act does not directly speak to if or how a public agency must provide members of the public with copies in the event an agenda has been voluntarily prepared, this office is unable to find that a violation of the provisions of the Open Meetings Act was committed on August 8. Consistent with the express purpose of the Act, codified at KRS 61.800, existing case law, and the above-referenced Open Records Decisions, however, this office does agree that best practice for a public agency such as the Fiscal Court to adopt is to make a sufficient number of copies of the agenda publicly accessible when the meeting commences in order to maximize notice to the public of the business to be discussed, just as the Fiscal Court apparently did historically. 2
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 J. Deye
Footnotes
Footnotes
1 KRS 61.823(3) thus states:
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.
See 05-OMD-138 for the standard analysis relative to KRS 61.823(3).
2 KRS 61.826, "Video teleconferencing of meetings," arguably lends additional support for this position insofar as it provides that "[t]he same procedures with regard to participation, distribution of materials, and other matters shall apply in all video teleconference locations." KRS 61.826(3). This requirement implicitly suggests that, in addition to "comply[ing] with the requirements of KRS 61.820 or 61.823 as appropriate," as KRS 61.826(2) requires, a public agency is only permitted to conduct a public meeting by video teleconference if the public receives proper notice, its ability to observe the discussion of public business is not impaired, and it can participate by reviewing any relevant materials.