Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been submitted to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Perry County Fiscal Court violated KRS 61.823 by failing to give proper notice of a special meeting conducted on March 21, 2012, at 1:30 p.m. and KRS 61.835 by failing to promptly record minutes of that meeting. The fiscal court's public announcement of the 1:30 special meeting at its 10:00 regular meeting, also conducted on March 21, did not satisfy the requirements of KRS 61.823 or otherwise relieve the fiscal court of its duties under that statute. The fiscal court was statutorily obligated to record minutes of the special meeting, even if no votes or actions were taken, reflecting that the meeting was convened, a quorum was present, and the meeting was adjourned.
On March 23, 2012, Lloyd Engle submitted a written complaint to Perry County Judge/Executive Denny Ray Noble in which he alleged that the Perry County Fiscal Court violated the Open Meetings Act by failing to give proper notice of a meeting conducted at 1:30 p.m. on March 21, 2012. As a means of remedying the alleged violation, Mr. Engle proposed that the fiscal court discuss, at a properly called public meeting, the matters illegally discussed during the 1:30 meeting, that any actions taken at that meeting be voided, and that the fiscal court "permanently cease violation of the 1974 Open Meetings Act. "
In a timely written response, Judge Noble "denie[d] that any violation of the Kentucky Open Meetings Act occurred on March 21, 2012." He explained:
The Perry County Fiscal Court met on March 21, 2012 at 10:00 a.m. for its regularly scheduled monthly meeting. The Fiscal Court had requested that Spalding Engineers be represented at the regularly scheduled meeting to discuss the progress of current water line projects and any possible extensions of any existing projects. The representative from Spalding Engineers was not available to meet with the Fiscal Court at the 10:00 a.m. meeting time, but advised the Court that he would be available at 1:30 p.m. This change in time was announced at the regularly scheduled 10:00 a.m. meeting. It was announced that this meeting would be open to the public and any interested parties were invited and encouraged to attend. The Perry County Fiscal Court met with the representative of Spalding Engineers at 1:30 p.m. on March 21, 2012. The meeting was held in the Perry County Courthouse and was open to the public.
In closing, Judge Noble noted that "[n]o vote or any official action was taken as a result of this meeting." Dissatisfied with this response, Mr. Engle appealed to this office, reasserting that "[t]he meeting was not properly noticed and no minutes were taken at the meeting." We agree.
In supplemental correspondence directed to this office, Perry County Attorney John Carl Shackelford emphasized that the "change in time was announced at the regularly scheduled 10:00 a.m. meeting . . . and any interested parties were invited and encouraged to attend. " He maintained that the meeting "was open to the public at all times." In response to questions propounded by this office pursuant to KRS 61.846(2), 1 Mr. Shackelford advised that the 10:00 and 1:30 meetings were conducted in different rooms in the Perry County Courthouse, that the 1:30 meeting was announced at the 10:00 meeting but that there was no written notice of the 1:30 meeting, that minutes were taken at the 10:00 meeting but not at the 1:30 meeting, and that the 10:00 meeting concluded by adjournment.
These facts support a finding that the Perry County Fiscal Court violated KRS 61.823(3) and (4) by failing to give proper notice of the 1:30 special meeting conducted on March 21, 2012, and KRS 61.835 by failing to record minutes of that meeting. In an early open records opinion, the Attorney General directly addressed the question "whether a public agency while holding a regular meeting can 'adjourn' or 'continue' the meeting to another time without notifying the media or the public of the time, date, place, or matters to be included on the agenda. " At page one of OAG 78-499, this office determined:
An agency may adjourn a meeting to another time and place provided it complies with KRS 61.820 as to holding a regular meeting and KRS 61.82[(3)] as to holding a special meeting. 2 An "adjourned meeting" should be treated as a special meeting so far as giving notice to the media is concerned . KRS 61.820 provides as follows:
KRS 61.82[(3)] provides the manner for calling and holding a special meeting. All meetings of a public agency should either be regular meetings or special meetings in conformance with the statute.
(Emphasis added.) In 03-OMD-021, we were presented with a similar question. There, we opined:
The Open Meetings Act does not address the issue of notice for adjourned or recessed meetings. However, in OAG 78-499 we held that an "adjourned meeting" should be treated as a special meeting so far as giving notice to the media is concerned. We believe the same would apply for giving notice of an adjourned meeting to the public in general. Because an adjourned meeting would not be on a schedule of regular meetings, the notice requirements for special meetings set forth in KRS 61.823, should be followed in order that the public receive adequate notice of the meeting. This would be consistent with the express purpose of the Open Meetings Act to "maximize notice of public meetings and actions," and 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).
03-OMD-021, p. 7 (emphasis added).
The March 21 regular meeting conducted at 10:00 a.m. concluded with adjournment, thus terminating that meeting. The 1:30 p.m. meeting that followed on the same day was a new meeting. The 1:30 meeting did not appear on the fiscal court's schedule of regular meetings. Perforce, the fiscal court was obligated to treat it as a special meeting and to comply with the notice requirements set forth at KRS 61.823(3) and (4). Those statutes state:
(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. 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.
(b) A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail. The written request shall include the electronic mail address or addresses of the agency member or media organization.
(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.
If the fiscal court received word of the engineer's unavailability too late to comply with these provisions, it was obligated to postpone the discussion of the water line project until it could comply or until its next meeting. The public announcement of the 1:30 meeting at the 10:00 meeting did not satisfy the notice requirements expressly set forth at KRS 61.823(3) and (4). As Kentucky's courts have observed in a similar context, "The language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The fiscal court's actions relative to the meeting did not "remotely comply with the requirements of the Act -- much less . . . amount to substantial compliance." Id.
Had the fiscal court moved to "adjourn the 10:00 meeting to 1:30 p.m. on March 21, 2012," instead of simply adjourning, it would have nevertheless been obligated to treat the 1:30 meeting as a special meeting per OAG 78-499 and 03-OMD-021. As noted in those authorities, the "adjourned meeting" date did not appear on the fiscal court's regular meeting schedule and must therefore be characterized as a special meeting subject to the notice requirements found at KRS 61.825(3) and (4). Regardless of whether the 10:00 meeting was terminated by adjournment or continued by adjournment to a fixed date and time, in essence, a rescheduled regular meeting, the Perry County Fiscal Court failed to give proper notice of the 1:30 meeting. By failing to do so, the fiscal court violated KRS 61.823(3) and (4).
The fiscal court also violated KRS 61.835 by failing to promptly record minutes of the 1:30 meeting. KRS 61.835 provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
In construing the provision, the Attorney General has observed that minutes must be recorded:
if a quorum of the members of the agency attend and a discussion of public business occurs. 94-OMD-50, p. 4; 03-OMD-197. All such meetings must be memorialized in minutes as required by KRS 61.835 even if no action is taken. Thus, at page 6 of 05-OMD-117, the Attorney General reaffirmed the long-standing principle that "[t]he requirement that the agency record minutes of its meetings is triggered regardless of whether action is taken at the meeting." Continuing, we observed that "[a]t a minimum, the minutes should reflect that the meeting was convened, a quorum was present, and the meeting was adjourned. " 99-OMD-166, p. 5, cited in 05-OMD-117.
11-OMD-092, p. 4. Just as KRS 61.823(3) is aimed at maximizing notice of the occurrence of public meetings, KRS 61.835 is aimed at maximizing notice of what transpired at those meetings, and all public agencies must strictly adhere to the specific legal requirements these statutes impose. Contrary to its stated position on appeal that it did not violate the Open Meetings Act on March 21, 2012, the Perry County Fiscal Court violated both KRS 61.823(3) and (4), as well as KRS 61.835, by failing to adhere to requirements imposed by law.
The fiscal court's stated position on appeal is contrary to its stated position on March 21. In a newspaper article attached to Mr. Engle's appeal, Judge Noble is quoted as having said, "Sometimes we do break the Sunshine Law because we have to." "Meetings Violations, Clerk's Audit Raised in Fiscal Court Meeting," http://hazard-herald.com/view/full_story/17965084/article-Meetings-viol… . . . (3/22/2012). Although Judge Noble was not directly quoted, the article also ascribes to him a statement that the fiscal court "hold[s] these unannounced meetings so that they can fully discuss issues so they are able to be in agreement prior to coming to meetings where action on issues is taken. He said that he believes this makes the fiscal court more efficient in public meetings." "Meetings Violations," above. A copy of the article was included in the materials mailed to the fiscal court along with the notification of receipt of Mr. Engle's open meetings appeal. Regardless of the accuracy of these statements, the Perry County Fiscal Court must be guided by the recognition that "the Kentucky legislature consider[s] 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). Consistent with the statement of legislative policy declaring that "[t]he formation of public policy is public business, " 3 the public is legally entitled to know not only what the Perry County Fiscal Court agrees to, but how the Perry County Fiscal Court reaches those agreements.
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:
Lloyd EngleDenny Ray NobleJohn C. Shackelford
Footnotes
Footnotes
1 KRS 61.846(2) provides, in part:
In arriving at the decision, the Attorney General may request additional documentation from the agency. On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who filed the complaint.
2 In a subsequent opinion, the Attorney General recognized:
There are only two kinds of meetings-regular meetings and special meetings.
Regular meetings are held at specified times and places which are convenient to the public. Public agencies must 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 particular agency. [KRS 61.820.]
Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)(a), there are also posting requirements (KRS 61.823(4)(b)). These requirements must be met each time for each called special meeting.
94-OMD-50, p. 4; 01-OMD-175, p. 5, 6.
3 KRS 61.800.