Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This open meetings appeal having been presented to the Office of the Attorney General, and the Attorney General being sufficiently advised, we find that the Butler County Fiscal Court violated KRS 61.823(3) and (4) by failing to provide proper notice of its September 14, 2011, special meeting. Contrary to the Fiscal Court's belief, this was not a "technical violation." As this office has observed in the past, "The [Open Meetings] Act does not recognize a class of violations of lesser gravity than the remaining violations and therefore capable of being dismissed as merely 'technical.'" 00-OMD-114, p. 3. 1
By letter dated September 15, 2011, and directed to County Judge-Executive David Fields, Robert D. Cron alleged that the Fiscal Court failed to comply with KRS 61.823(3) and (4), requiring delivery of a special meeting notice consisting of the date, time, and place of the special meeting, and the agenda for the special meeting, at least twenty-four hours before the special meeting. He maintained that the Fiscal Court members did not receive a copy of the agenda until a few minutes before the meeting began. As a means of remedying the alleged violation, Mr. Cron proposed that the Fiscal Court "comply with all aspects of the Open Meetings Act" including the posting requirement for special meeting notice and the requirement of timely delivery to the magistrates and the media.
One day later, the Fiscal Court responded to Mr. Cron's complaint through Butler County Attorney Richard J. Deye. Mr. Deye acknowledged that he had not fully investigated the matter but suggested that "the fact that [he] observed [staff] passing out copies of the agenda shortly before the meeting does not preclude the possibility that proper notice was sent and that what [he] observed was simply [staff] distributing additional copies." Continuing, Mr. Deye noted that the agenda for the September 12 regular meeting contained a reference to the September 14 special meeting, though it did not "specifically mention a time, place, or specific agenda. " He recalled a discussion between the County Judge-Executive and the magistrates that occurred during the regular meeting which focused on the date and purpose of the special meeting, asserting that "it was reasonably apparent to everyone at the September 12, 2011, meeting when the special called meeting would be and what its purpose was." In the interest of compliance, Mr. Deye suggested that provision be made for email notification of special meetings to the magistrates and the media in a manner consistent with KRS 61.823(4)(b).
On appeal, Mr. Cron alleges that the Butler Fiscal Court's recurring failure to post and deliver timely written notice of special meetings is indicative of an "ongoing policy," noting that KRS 61.991 contains penalties for members of public agencies who knowingly attend illegal meetings. In closing, Mr. Cron states that his inquiries confirm that the magistrates did not receive the special meeting agenda until minutes before the meeting and that this violation exposes them "to the consequences of KRS 61.991(1)."
In supplemental correspondence directed to this office, the Butler County Fiscal Court, again through Mr. Deye, responds that efforts are underway to implement an email special meeting notification system and that it was believed this "would be satisfactory compliance." He questions Mr. Cron's reference to the penalty provisions of the Open Meetings Act, characterizing them as "counterproductive," at best, and "unfounded," at worst. Again the Fiscal Court reiterates that in light of the discussion at its September 12 regular meeting, "all of the underlying purposes of the Open Meetings requirements were satisfied [inasmuch as a]ll magistrates knew when the special called meeting would take place and all magistrates knew the items to be discussed." In sum, Mr. Deye argues, "[t]he only provision of the Open Meetings Law that was violated is that the magistrates did not receive a piece of paper twenty-four hours in advance . . . . One must struggle to discern how the actions of the Butler County Fiscal Court compromised the citizens of Butler County."
Neither this office nor the Butler County Fiscal Court need "struggle to discern" how the interests of the citizens of Butler County were compromised by the Fiscal Court's failure to comply with the express requirements of the Open Meetings Law. The law recognizes harm any time an agency acts in derogation of these requirements regardless of how inconsequential its actions may appear to the agency.
E. W. Scripps Co. v. Maysville, 750 S.W.2d 450 (Ky. App. 1990) (recognizing that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violated the public good"). The Butler County Fiscal Court has been the subject of no less than nine open meetings appeals in this year alone. Of these, five have been resolved, in whole or in part, against the Fiscal Court. Several of these appeals involved inadequate notice of special meetings. The Butler County Fiscal Court's failure to provide the magistrates with a piece of paper, albeit a piece of paper that contained the legally required agenda topics, constituted a violation of KRS 61.823(3) and (4).
Although the Kentucky Attorney General is not empowered to impose monetary penalties on the members of the Butler County Fiscal Court for knowingly attending a meeting not held in accordance with KRS 61.805 to 61.850, 2 or to void actions taken by the agency "without substantial compliance with the requirements of KRS 61.810, 61.815, 61.820, and KRS 61.823," 3 a court of competent jurisdiction is. OAG 76-4; 00-ORD-150. Mr. Cron's reference to these provisions serves to remind all involved that failure to comply with the Open Meetings Act has consequences and that the law should not be casually dismissed. We trust that this knowledge will encourage responsible public servants to renew their commitment to strict compliance with the requirements of the Act.
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 In the same opinion, the Attorney General noted:
The Open Meetings Act does recognize a distinction between failure to substantially comply with "the requirements of KRS 61.810, 61.815, 61.820, and KRS 61.823," and failure to substantially comply with KRS 61.835 (minutes to be recorded) and KRS 61.840 (conditions for attendance). In the case of KRS 61.810, 61.815, 61.820, and 61.823, "any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance . . . shall be voidable by a court of competent jurisdiction. " KRS 61.848(5). This is not true of formal action taken by an agency without substantial compliance with KRS 61.835 and KRS 61.840.
Id. The violation alleged and substantiated in this appeal involved KRS 61.823.
2 KRS 61.991(1). The Act establishes additional monetary penalties for willful violations of the Open Meetings Act at KRS 61.848(6).
3 KRS 61.848(5).