Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Spencer County Ethics Commission violated the Open Meetings Act by failing to comply with the notice requirements codified at KRS 61.823(3) and (4) prior to its June 18, 2012, special meeting, by conducting unauthorized closed session discussion at that meeting, and by failing to tape the meeting and allow the public to tape the meeting. We find that the notice provided by the commission did not conform to the requirements of KRS 61.823(3) and (4). We also find that although the content of the closed session discussion may have been statutorily authorized, the commission offered no legal justification for the closed session, other than its code of ethics, in contravention of the Open Meetings Act. Finally, we find that the commission did not violate the Open Meetings Act by failing to record the June 18 meeting. If, however, the commission refused to permit the public to record the open session of the June 18 meeting, that refusal constituted a violation of KRS 61.840.
On June 11, 2012, Lawrence Trageser submitted a written complaint to Spencer County Ethics Commission Chairman Dwight Greenwell. Mr. Trageser's allegations, and the commission's responses, are summarized below:
1. The agency must give written notice consisting of date, time, and place of the meeting and the agenda.
Response: The commission "did give written notice to all interested parties. "
2. Written notice must be delivered to every media organization that has requested advance notice at least 24 hours before the meeting.
Response: The commission "is not aware of any media organization that has requested advance notice of meetings."
3. Like the media, a private citizen must be permitted to record a meeting.
Response: Recording of an executive session is not permitted.
4. The notice of the special meeting must include an agenda containing specific agenda topics.
Response: The June 11 letter to Mr. Trageser from the commission read, "We are conducting an initial inquiry."
5. The June 18, 2012, closed session discussion was illegal because it "did not conform to any of the thirteen allowable exemptions."
Response: The executive session was "for the purpose of deliberations involving individual adjudications which is permissible in accordance with the Open Meetings Act. "
6. Requesting a copy of "the taped meeting in full," Mr. Trageser alleges a violation based on the commission's anticipated refusal.
Response: No tape of the meeting was created using agency equipment or at agency expense.
Mr. Trageser's complaint did not contain a proposed remedy, per se , but sought "response by the Ethics Commission for justification of these illegal actions."
On appeal, Mr. Trageser expanded on the facts giving rise to his appeal. He asserted that:
1. the commission did not indicate that it intended to conduct a closed session in the meeting agenda and was therefore foreclosed from doing so;
2. the commission "ordered [him] to stop recording the meeting";
3. the fiscal court and other county agencies "consistently notif[y] the Spencer Magnet ," the "only media in Spencer County," and the commission did not notify the newspaper or solicit a written request from the newspaper to receive notice of special meetings;
4. the notice posted on the door of the fiscal court meeting room "did not meet the requirement of KRS 61.823(3)";
5. the exception authorizing closed session deliberations of a judicial or quasi-judicial body applies to discussions among members only and expressly excludes "any other individual";
6. the commission's failure to tape the meeting, using county owned equipment, "subverted the Open Meetings Act . . . ."
KRS 61.846(2) and 40 KAR 1:030 Section (1) preclude us from considering any allegation made for the first time in Mr. Trageser's letter of appeal. 1
In supplemental correspondence directed to this office, the commission elaborated on its responses to each of Mr. Trageser's allegations seriatim :
1. The chairman posted notice of the meeting and notified the three individuals in the complaint. Mr. Trageser notified the newspaper "even though he knew that 'initial inquiries' before the commission are confidential . . .";
2. Written notice was not delivered to the newspaper, but the newspaper "had notice as they were present";
3. Mr. Trageser was not allowed to record the meeting because the commission "had declared they were going into executive session" ;
4. The notice did not contain an agenda;
5. The commission "followed the county Code of Ethics in that all initial inquiries are confidential" and took no action;
6. The commission did not record the meeting because it was conducted in executive session.
The commission indicated that once it became aware that no agenda had been posted, the chairman called another meeting on June 29 and notified the media by U.S. Mail. No one attended that meeting except the members and commission counsel. In our view, this action mitigated the commission's open meetings violations only in part.
Inadequate special meeting notice
The commission acknowledges that it violated KRS 61.823(3) by failing to include an agenda in the letter announcing its June 18 meeting. This, of course, was not the only deficiency in that notice. Consistent with the goal of "maximiz[ing] notice of public meetings and actions," KRS 61.823(3) and (4) provide:
(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.
"The language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App., 1996). It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed . . . ." Since 2005, emailed notice of special meeting is permissible if the member or media organization has expressed a preference for email notification, in writing, and provided an email address. KRS 61.823(4)(b). In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. These requirements apply to all meetings of a quorum of the members of a public agency in which public business is discussed or action is taken, 2 regardless of whether the agency intends to conduct some or most of the meeting in closed session. See, 12-OMD-140 (enclosed).
The commission's letter to "interested parties" prior to the June 18 meeting did not satisfy this statutory duty. 3 The letter was not transmitted to commission members or media organization per KRS 61.823(4)(a), but to the parties to the complaint of an ethics code violation. Although it advised these parties when and where the meeting would be conducted, it was in the nature of an invitation to the parties to attend and not a KRS 61.823(3) meeting notice. The fact that it contained no agenda undermines the commission's attempt to characterize it as a meeting notice. For these reasons, we find that the commission violated KRS 61.823(3) and (4) by failing to give proper notice of its June 18 special meeting. 4
Closed session discussion
Although this office has approved an ethics commission's practice of conducting "preliminary inquiry" in closed session in past open meeting decisions, in that decision the record on appeal confirmed that the ethics commission invoked the proper exception before conducting the closed session. In 01-OMD-18 the Richmond Board of Ethics conducted a "preliminary inquiry" under authority of KRS 61.810(1)(f), authorizing closed session "discussion or hearing which might lead to the appointment, discipline, or dismissal of an individual employee, member or student . . . ." A copy of that decision is attached hereto and its reasoning is incorporated by reference. See also, 05-OMD-017; 10-OMD-017. Quoting from an early open meetings opinion, we observed:
Since the statute uses the words "discussions or hearings" and also uses the term "might lead to," we believe that a closed session can be held on a personnel matter without formal charges being made against the person who is the subject of the session. Such a discussion could be entirely preliminary to deciding either to reject the idea of disciplinary or dismissal action, or could be preliminary to a decision to make formal charges and hold another hearing.
01-OMD-18, p. 6 citing OAG 81-413, p. 2; see also, OAG 84-46 and OAG 81-135. Thus, we concluded:
The Board of Ethics acts in a quasi-adjudicative capacity in reviewing allegations of unethical conduct, and its jurisdiction extends both by statute and ordinance to elected officials and employees of the city, including the Mayor. Acting in this capacity, the Board may discuss in closed session whether the allegations state a minimal factual basis to constitute a violation and a complaint should issue. Clearly, such discussions might lead to the imposition of discipline on the Mayor regardless of whether she is characterized as a member or employee. Any other interpretation of the exception elevates form over substance.
Id. at 7.
In the appeal before us, the commission invokes no statutory exception authorizing a closed session. Instead, the commission cites its code of ethics as authority for the closed session, suggesting that the closed session was permissible because it was conducted for the purpose of "deliberations involving individual adjudications." The commission's stated purpose for conducting the closed session suggests reliance on KRS 61.810(1)(j), authorizing closed session:
Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment;
(Emphasis added.) Here, the commission could not properly invoke KRS 61.810(1)(j) because individuals who are not members of its governing body or staff were present in the closed session. The commission did not invoke KRS 61.810(1)(f) which might have authorized the closed session based on the reasoning of 01-OMD-18. Although Mr. Trageser did not raise the issue of the commission's compliance with KRS 61.815(1)(a) through (d), it is apparent that the commission did not cite the specific provision of KRS 61.810(1)(a) through (m) authorizing the closed session. We disagree with him that the commission could not conduct its "preliminary inquiry" in closed session, but find that the commission offered no legal justification for the June 18 closed session in contravention of the requirements of the Open Meetings Act.
Failure to tape meeting
We find no support in the law for Mr. Trageser's claim that the commission violated the Open Meetings Act by failing to tape its June 18 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.
There is no requirement in the law that a public agency tape its meetings while in open session or closed session. Written minutes "setting forth an accurate record of votes and actions taken" are sufficient. KRS 61.835. The commission cannot, of course, impede the public's right to record its open sessions. If it prohibited Mr. Trageser from doing so, its actions constituted a violation of KRS 61.840. 5
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:Lawrence TrageserDwight D. GreenwellRuth Hollan
Footnotes
Footnotes
1 KRS 61.846(1) provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply.
(Emphasis added.) Pursuant to 40 KAR 1:030 Section 1, the Attorney General "shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency's written response." Any allegations that did not appear in Mr. Trageser's open meetings complaint cannot be considered on appeal. Accord, 12-OMD-139.
2 KRS 61.810(1).
3 On this subject, the Attorney General has observed:
Neither KRS 61.823 nor any other provision of the Open Meetings Act requires agency notice to interested parties or members of the public generally. See, e.g., OAG 79-121, p. 2 (holding that "Notice to the news media is notice to the public"); 99-OMD-167, p. 4, note 3 (holding that "the Open Meetings Act does not require a public agency to provide individual written notice to persons affected by the issues to be discussed at its special meetings").
03-OMD-197, p. 8. While notice to persons against whom allegations have been made or complaints leveled may be addressed in the agency's ethics ordinance, that ordinance does not supplant the agency's duties under the Open Meetings Act. See OAG 82-435; 03-OMD-187.
4 We do not address Mr. Trageser's belated allegation that the special meeting notice was not properly posted per KRS 61.823(4)(c). He did not level this allegation in his original complaint and is not entitled to be heard on his claim on appeal. See note 1, above.
5 KRS 61.840 provides:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
(Emphasis added.) This provision has been construed by the Attorney General to extend the right to record a public meeting to private citizens as well as the media. 96-OMD-143.