Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This open meetings appeal having been submitted to the Office of the Attorney General, and the Attorney General being sufficiently advised, we find that the Knott County Fiscal Court violated KRS 61.823(4)(a) by failing to properly transmit written notice of its September 21, 2011, special meeting to the members of the fiscal court and KRS 61.810(1) by continuing to discuss public business after that meeting had adjourned. Although these violations were, according to County Judge/Executive Randy Thompson, "inadvertent, " they nevertheless "violate[d] the public good" insofar as they represented a "failure to comply with the strict letter of the law."
E.W. Scripps Company v. City of Louisville, 790 S.W.2d 450, 452 (Ky. App. 1990).
In his September 23 open meetings complaint, Ezalee Pigman alleged that the Knott County Fiscal Court did not provide written notice of the September 21 special meeting to the magistrates at least twenty-four hours before that meeting. Additionally, Mr. Pigman alleged that the fiscal court continued to discuss public business after the meeting was adjourned in an illegal "work session" for which no written minutes exist. 1 As a means of remedying these alleged violations, he proposed that "all resolutions considered during the meeting be considered void and be brought back up at a legally called meeting with feedback from the public."
On September 27, 2011, Judge Thompson denied that the September 21 meeting "was held in violation of the Open Records [sic] Act." He asserted that the agenda "was prepared and posted nearly 26 hours in advance of the meeting and all local media was notified and faxed the agenda. " He acknowledged that the magistrates did not receive written notification but indicated that "they were personally called more than 24 hours in advance of the meeting as that is how they have asked us to contact them." In addition, Judge Thompson acknowledged that although "there was nothing secretive about it," he and the magistrates remained in the courtroom after the meeting was adjourned to answer questions from members of the public and that "some of the magistrates subsequently went with him to his office to discuss the budget." He maintained that no vote or action was taken at these post-adjournment gatherings and that they were "open to anyone that wanted to attend."
In supplemental correspondence directed to this office after Mr. Pigman initiated his appeal, Judge Thompson provided us with a copy of his revised response to the allegations in the complaint. He conceded that the fiscal court "may have inadvertently been in violation of the Open Meetings Act due to the fact [that] the magistrates were not notified [of the September 21 special meeting] in writing," and that they "continu[ed] to allow people to have discussions with the court members after the meeting had adjourned. " He further conceded that the post-adjournment meeting with the magistrates in his office "was improper but . . . also inadvertent, " that members of the public were also present, that other topics "including cars [and] basketball" were discussed, and that no action was taken. Given our recent determination that the Knott County Fiscal Court violated KRS 61.810(1) by conducting a telephone meeting and KRS 61.823 by failing to give proper notice of a special meeting, 2 as well as its apparent failure to comply with KRS 65.055 by distributing written information concerning the Open Records and Open Meetings Acts to newly elected or appointed county officials, a duty discussed in 11-ORD-018, 3 we are obliged to "review the complaint and denial and issue . . . a written decision stating whether [the fiscal court] violated the provisions of KRS 61.805 to 61.850." 4
In 11-OMD-018, the Attorney General reminded the Knott County Fiscal Court 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 , above at 452. Continuing, we quoted the Kentucky Supreme Court:
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. 5 The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. . . .
. . .
(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.
(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, among other things, that the agency transmit written notice of special meetings by hand-delivery, fax, U.S. Mail, or, under the appropriate circumstances, email.
In 11-OMD-018, the Knott County Fiscal Court presented no proof of compliance with the requirements of KRS 61.823. Here, the fiscal court asserts that the requirements were all met save the requirement of transmission of written notice. In originally denying Mr. Pigman's allegation of improper notice, the fiscal court asserted that it discharged its statutory duty by notifying the fiscal court members of the meeting by telephone. On several occasions, the Attorney General has recognized that verbal notification "may be utilized in addition to, but not in lieu of, the statutorily required methods of communication." 06-OMD-044, p. 7; see also 00-OMD-227 (meeting notice posted on agency's website); 01-OMD-141 (public announcement at regular meeting of upcoming special meeting) ; 02-OMD-91 (emailed notification prior to 2008 amendment of Open Meetings Act) ; 03-OMD-197 (telephone notification) ; 06-OMD-044 (telephone notification) . As in 06-ORD-044, we find that "because the Open Meetings Act does not recognize the validity of verbal notification, delivered in person or by telephone" the Knott County Fiscal Court violated the Act by transmitting notification of the September 21 meeting by telephone. Consistent with the cited authorities, the fiscal court may transmit notice by telephone in addition to, but not in lieu of, hand-delivered, faxed, mailed, or, where the requirements of KRS 61.823(4)(b) are met, emailed notice.
The fiscal court cannot, under any circumstances, continue to conduct public business after its meetings are adjourned. Its actions at the September 21 meeting, whether intentional or inadvertent, therefore constituted a violation of KRS 61.810(1). That statute provides:
All 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.
KRS 61.810(1) implements the legislative statement of policy, codified at KRS 61.800, which declares that "the formation of public policy is public business and shall not be conducted in secret . . . ." In
Yeoman v. Commonwealth of Kentucky, 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court recognized that the Open Meetings Act "prohibits a quorum from discussing public business in private or meeting in numbers less than a quorum for the express purpose of avoiding the open meeting requirement of the Act." "For a meeting to take place within the meaning of the act," the Court concluded, "public business must be discussed or action must be taken by the agency." Id. The adjournment of a public meeting signals the conclusion of agency discussion of, or action on, public business. The fact that some members of the public remain behind to pursue additional discussion, or that some agency members wish to ask questions in a nonpublic forum, does not relieve the agency of its statutory duty to conduct the public's business in a public meeting.
In a series of decisions dating back to 1978 the Attorney General has recognized that even a casual gathering of a quorum of the members of a public agency triggers the requirements of the Open Meetings Act if public business is discussed or action is taken. OAG 78-411. Thus, in OAG 80-81 we stated that a city council violated the Act when a quorum of its members met before a regular meeting and decided among themselves how they would vote on a matter subsequently brought before the council at the meeting. Similarly, in OAG 83-102 we held that an agency "committee" composed of a quorum of the agency's members, along with several others, could not discuss the agency's business in private, reasoning:
Under KRS 61.810 whenever a quorum of the members of any public agency meet and discuss any public business the meeting is a public meeting as defined in the Open Meetings Law, KRS 61.805 to 61.850. Even though the [agency] called itself a committee and added several other people to the "committee," it was required to comply with the Open Meetings Law.
OAG 83-102, p. 3, citing
Courier-Journal v. University of Louisville, Ky. App., 596 S.W.2d 374 (1980). Finally, in 94-OMD-50 we held that a quorum of the members of a fiscal court violated the Open Meetings Act when they met in the magistrates' office to review matters involving the county. See also, 99-OMD-213.
Bearing in mind that a meeting takes place, within the meaning of the Act, if a quorum of the agency members are present and public business is discussed or action is taken, we find that the post-adjournment discussion of public business by a quorum of the members of the Knott County Fiscal Court constituted a violation of KRS 61.810(1) even if members of the media and the public were present and the discussions were inadvertent. Accord 98-OMD-74. While post-adjournment discussions of cars and basketball amongst a quorum of the fiscal court members are certainly permissible, discussions of the budget are not. It is incumbent on the fiscal court to make this clear to the media and public and to avoid any discussion of public business by a quorum of its members outside of a public meeting.
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:
Ezalee Pigman Randy ThompsonTimothy Bates
Footnotes
Footnotes
1 Mr. Pigman also objected to notice of the special meeting appearing in the newspaper one day after the meeting. We have confirmed with the editor of the Troublesome Creek Times , Karen Jones Cody, that the newspaper received notice of the September 21 meeting more than twenty-four hours before the meeting. We have also confirmed that the newspaper circulates on a weekly, and not a daily, basis. The newspaper's inability to publish notice of the meeting prior to its occurrence was almost certainly a consequence of its circulation schedule and is not, in any event, attributable to fiscal court error or actionable under the Open Meetings Act. However, this office recently recognized that in communities whose only media organizations publish or broadcast on a limited basis, there is a greater likelihood that we would find a violation of KRS 61.820 upon presentation of proof that the agency intentionally conducted the majority of its business at special meetings. See 11-OMD-129 (enclosed).
2 11-ORD-018.
3 Our records reflect that the Knott County Fiscal Court has not complied with its duty under KRS 65.055. That statute provides:
(1) County judge/executives and mayors, or their respective designees, shall distribute the written information provided by the Office of the Attorney General and the Department for Libraries and Archives under KRS 15.257 and 171.223 to each elected official and each member, whether elected or appointed, of every county and city legislative body, local government board, commission, authority, and committee, including boards of special districts, located within their respective jurisdictions. In the case of a board, commission, or authority created by joint action of a county or city, the county judge/executive and mayor, or their respective designees, shall distribute the written information to the members appointed by their respective jurisdictions. Distribution shall be accomplished within sixty (60) days of receiving the written information from the Office of the Attorney General and the Department for Libraries and Archives. Distribution to newly elected or appointed members shall be accomplished within sixty (60) days of their election or appointment. The distribution may be by electronic means.
(2) County judge/executives and mayors shall require signatory proof that each person identified in subsection (1) of this section has received the written information, shall maintain documentation of receipt on file, and shall certify to the Office of the Attorney General that the written information has been distributed as required.
This office has received no certification of distribution since KRS 65.055 was enacted in 2005. All materials required for compliance with KRS 65.055 can be accessed at http://ag.ky.gov/civil/orom/alert.htm.
4 40 KAR 1:030 Section 6 authorizes the Attorney General to "moot" open records appeals when the dispute is resolved by release of the records before the Attorney General renders a decision. No corresponding provision exists for open meetings appeals where the agency acknowledges error.
5 Since 2008, public agencies have had the option of transmitting written notice of special meetings by email "in lieu of notice by personal delivery, facsimile machine, or mail" if the agency member or media organization files a written request with the agency expressing a preference for email notification and provides an email address. KRS 61.823(4)(b).